<PAGE> 1
As filed with the Securities and Exchange Commission on September 10, 1998.
Registration No. 333-________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC. 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
incorporation or organization) Identification No.)
One Innovation Drive
Natick, Massachusetts 01760
(508) 651-0088
(Address of Principal Executive Offices) (Zip Code)
-----------------------------
1994 Omnibus Stock Plan
Other Employee Benefit Plan
Amended and Restated 1994 Employee Stock Purchase Plan
(Full title of the plans)
-----------------------------
Paul J. Pedevillano
Chief Financial Officer
SystemSoft Corporation
2 Vision Drive
Natick, Massachusetts 01760
(508) 651-0088
(Name and address including zip code and telephone number,
including area code, of agent for service)
-----------------------------
Copies to:
Mitchell S. Bloom, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
High Street Tower, 125 High Street
Boston, Massachusetts 02110
(617) 248-7000
================================================================================
<PAGE> 2
- 2 -
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of securities Amount to be offering aggregate Amount of
to be registered registered(1) price per share offering price registration fee
---------------- ---------- --------------- -------------- ----------------
<S> <C> <C> <C> <C>
1994 OMNIBUS STOCK PLAN
Common Stock, par value $.01 per share 1,200,000 $ .59(2) $ 708,000(2) $208.86(2)
AMENDED AND RESTATED 1994 EMPLOYEE
STOCK PURCHASE PLAN
Common Stock, par value $.01 per share 400,000 .59(2) 236,000(2) 69.62(2)
OTHER EMPLOYEE BENEFIT PLAN
Common Stock, par value $.01 per share 500,000 4.50(3) 2,250,000(3) 663.75(3)
--------- -------
TOTAL 2,100,000 $942.23
========= =======
</TABLE>
================================================================================
(1) Plus such additional shares as may be required pursuant to the plan
in the event of a stock dividend, split-up of shares,
recapitalization or other similar change in the Common Stock.
(2) Pursuant to Rule 457(h)(1) of Regulation C of the Securities Act, the
price of $.59 per share, is the average of the high and low prices
of the Common Stock as reported on The Nasdaq National Market on
September 4, 1998 and is set forth solely for purposes of
calculating the filing fee for those shares without a fixed exercise
price.
(3) Based on an option to purchase 500,000 shares of SystemSoft
Corporation's Common Stock under an Amended and Restated
Non-Qualified Stock Option Agreement dated as of February 20, 1998.
All of such shares are issuable upon exercise of an outstanding
option to purchase 500,000 shares of Common Stock 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 this option may be exercised.
<PAGE> 3
- 3 -
This Registration Statement registers additional securities of the same
class as other securities for which the Registration Statement No. 33-85968 on
Form S-8 as filed with the Securities and Exchange Commission on November 2,
1994, relating to SystemSoft Corporation's 1994 Omnibus Stock Plan and 1994
Employee Stock Purchase Plan, the Registration Statement No. 33-80843 on Form
S-8 as filed with the Securities and Exchange Commission on December 26, 1995,
relating to SystemSoft Corporation's 1994 Omnibus Stock Plan and the
Registration Statement No. 333-13019 on Form S-8 as filed with the Securities
and Exchange Commission on September 30, 1996, relating to SystemSoft
Corporation's 1994 Omnibus Stock Plan, are effective. Pursuant to General
Instruction E to Form S-8, the contents of the above-listed Registration
Statements are hereby incorporated by reference.
<PAGE> 4
- 4 -
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 the
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 "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:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
January 31, 1998;
(b) The Registrant's Current Report on Form 8-K filed with the Commission
on February 13, 1998;
(c) The Registrant's Current Report on Form 8-K filed with the Commission
on March 10, 1998;
(d) The Registrant's Current Report on Form 8-K filed with the Commission
on May 13, 1998;
(e) The Registrant's Current Report on Form 8-K filed with the Commission
on June 5, 1998;
(f) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended April 30, 1998, filed with the Commission on June 12, 1998 under
Section 15(d) of the Exchange Act;
(g) The Registrant's Current Report on Form 8-K filed with the Commission
on September 9, 1998; and
(h) The description of the Registrant's Common Stock incorporated by
reference into the Registrant's registration statement on Form 8-A
(SEC File No. 0-24418) filed with the Commission on August 23, 1994
from the Registrant's registration statement on Form S-1 (SEC File No.
33-80620) initially filed with the Commission on August 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, 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.
<PAGE> 5
- 5 -
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; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) 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
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(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 any 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.
<PAGE> 6
- 6 -
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
---------
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Second Restated Certificate of Incorporation of SystemSoft
Corporation (filed as Exhibit 3.1 to the Registrant's Form
10-Q filed September 16, 1996 and incorporated herein by
reference).
4.2 Certificate of Amendment of Second Restated Certificate of
Incorporation of SystemSoft Corporation (filed as Exhibit
3.2 to the Registrant's Form 10-Q filed September 16, 1996
and incorporated herein by reference).
4.3 1994 Omnibus Stock Option Plan, as amended and restated
effective as of June 29, 1995, as further amended effective
as of June 19, 1996, and as further amended effective as of
June 25, 1997.
4.4 Amended and Restated Non-Qualified Stock Option Agreement
dated as of February 20, 1998, by and between SystemSoft
Corporation and Deborah M. Besemer.
4.5 Amended and Restated 1994 Employee Stock Purchase Plan, as
amended effective as of June 19, 1996, and as further
amended effective as of July 1, 1998.
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (contained in its
opinion as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (contained on page 7 of this Registration
Statement on Form S-8).
<PAGE> 7
- 7 -
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Natick, the Commonwealth of Massachusetts, on this
25th day of August, 1998.
SYSTEMSOFT CORPORATION
By: /s/ Robert F. Angelo
--------------------------------------
Robert F. Angelo
Chairman of the Board of Directors and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature
appears below constitutes and appoints, jointly and severally, Robert F. Angelo
and Paul J. Pedevillano and each of them, with full power to act without the
other, his true and lawful attorney-in-fact, with the power of substitution, for
him in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8 (including post-effective amendments) and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorney-in-fact, or his or her substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Robert F. Angelo Chairman of The Board of August 25, 1998
- ------------------------- Directors and Chief Executive
Robert F. Angelo Officer (Principal Executive
Officer)
/s/ Paul J. Pedevillano Chief Financial Officer August 25, 1998
- ------------------------- (Principal Financial Officer)
Paul J. Pedevillano
/s/ Jeffrey R. Wakely Vice President, Finance August 25, 1998
- ------------------------- (Principal Accounting Officer)
Jeffrey R. Wakely
/s/ Robert N. Goldman Director August 25, 1998
- -------------------------
Robert N. Goldman
/s/ W. Frank King, Ph.D. Director August 25, 1998
- -------------------------
W. Frank King, Ph.D.
/s/ David J. Mcneff Director August 25, 1998
- -------------------------
David J. Mcneff
<PAGE> 8
- 8 -
INDEX TO EXHIBITS
Sequentially
Exhibit Description Of Exhibit Numbered Page
- ------- ---------------------- -------------
4.1 Second Restated Certificate of Incorporation
of SystemSoft Corporation (filed as Exhibit
3.1 to the Registrant's Form 10-Q filed
September 16, 1996 and incorporated herein by
reference).
4.2 Certificate of Amendment of Second Restated
Certificate of Incorporation of SystemSoft
Corporation (filed as Exhibit 3.2 to the
Registrant's Form 10-Q filed September 16,
1996 and incorporated herein by reference).
4.3 1994 Omnibus Stock Option Plan, as amended and
restated effective as of June 29, 1995, as
further amended effective as of June 19,
1996, and as further amended effective as of
June 25, 1997.
4.4 Amended and Restated Non-Qualified Stock
Option Agreement dated as of February 20,
1998, by and between SystemSoft Corporation
and Deborah M. Besemer.
4.5 Amended and Restated 1994 Employee Stock
Purchase Plan, as amended effective as of June
19, 1996, and as further amended effective as of
July 1, 1998.
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
23.1 Consent of Testa, Hurwitz & Thibeault, LLP
(contained in its opinion as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney. (contained on page 7 of this
Registration Statement on
Form S-8)
<PAGE> 1
Exhibit 4.3
SYSTEMSOFT CORPORATION
1994 OMNIBUS STOCK PLAN
----------------------------
1. PURPOSE. This 1994 Omnibus Stock Plan (the "Plan") of SystemSoft
Corporation (the "Company") is intended to provide incentives (a) to the
officers and other employees of the Company, its parent (if any) and any present
or future subsidiaries of the Company (collectively, "Related Corporations") by
providing them with opportunities to purchase stock in the Company pursuant to
options which qualify as "incentive stock options" under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), granted hereunder ("ISO"
or "ISOs"); (b) to directors, officers, employees and consultants of the Company
and Related Corporations by providing them with opportunities to purchase stock
in the Company pursuant to options granted hereunder which do not qualify as
ISOs ("Non-Qualified Option" or "Non-Qualified Options"); and (c) to directors,
officers, employees and consultants of the Company and Related Corporations by
providing them with opportunities to make direct purchases of restricted stock
in the Company ("Restricted Stock"). Both ISOs and Non-Qualified Options are
referred to hereafter individually as an "Option" and collectively as "Options."
As used herein, the terms "parent" and "subsidiary" mean "parent corporation"
and "subsidiary corporation" as those terms are defined in Section 424 of the
Code.
2. ADMINISTRATION OF THE PLAN. (a) The Plan shall be administered by the
Board of Directors of the Company (the "Board"). The Board may appoint a
Compensation Committee (the "Committee") of two or more of its members to
administer this Plan. In the event the Company registers any class of any equity
security pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), each member of the Committee shall be a"
disinterested person" as defined in Rule 16b-3 under the Exchange Act and each
shall be an "outside director" within the meaning of Section 162(m) of the Code.
Subject to ratification of the grant of each Option or Restricted Stock by the
Board (if so required by applicable state law), and subject to the terms of the
Plan, the Committee, if so appointed, shall have the authority to (i) determine
the employees of the Company and Related Corporations (from among the class of
employees eligible under paragraph 3 to receive ISOs) to whom ISOs may be
granted and to determine (from among the class of individuals and entities
eligible under paragraph 3 to receive Non-Qualified Options and Restricted
Stock) to whom Non-Qualified Options or Restricted Stock may be granted; (ii)
determine the time or times at which Options or Restricted Stock may be granted;
(iii) determine the option price of shares subject to each Option, which price
with respect to ISOs shall not be less than the minimum specified in paragraph
7, and the purchase price of Restricted Stock; (iv) determine whether each
Option granted shall be an ISO or a Non-Qualified Option; (v) determine (subject
to paragraph 7) the time or times when each Option shall become exercisable and
the duration of the exercise period; (vi) determine whether restrictions such as
repurchase options are to be imposed on shares subject to Options and to
Restricted Stock, and the nature of such restrictions, if any; (vii) establish,
amend and waive the terms and conditions of individual options and purchase
authorizations granted hereunder, including, without limitation, terms and
conditions relating to vesting, exercisability and effect of termination of
employment by the Company; and (viii) interpret the Plan and prescribe and
rescind rules and regulations relating to it. If the Committee determines to
issue a Non-Qualified Option, it shall take whatever actions it deems necessary,
under Section 422 of the Code and the regulations promulgated thereunder, to
ensure that such Option is not treated as an ISO. The interpretation and
construction by the Committee of any provisions of the Plan or of any Option or
authorization or agreement for Restricted Stock granted under it shall be final
unless otherwise determined by the Board. The Committee may from time to time
adopt such rules and regulations for carrying out the Plan as it may deem best.
No member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option or
Restricted Stock granted under it.
(b) The Committee may select one of its members as its chairman, and shall
hold meetings at such time and places as it may determine. Acts by a majority of
the Committee, or acts reduced to or approved in
<PAGE> 2
- 2 -
writing by a majority of the members of the Committee, shall be the valid acts
of the Committee. All references in this Plan to the Committee shall mean the
Board if there is no Committee so appointed. From time to time the Board may
increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause) and appoint new members in substitution
therefor, fill vacancies however caused or remove all members of the Committee
and thereafter directly administer the Plan.
3. ELIGIBLE EMPLOYEES AND OTHERS. ISOs may be granted to any officer or
other employee of the Company or any Related Corporation. Those directors of the
Company who are not employees may not be granted ISOs under the Plan.
Non-Qualified Options and Restricted Stock may be granted to any director
(whether or not an employee), officer, employee or consultant of the Company or
any Related Corporation. The Committee may take into consideration an optionee's
individual circumstances in determining whether to grant an ISO or a
Non-Qualified Option or Restricted Stock. Granting of any Option or Restricted
Stock to any individual or entity shall neither entitle that individual or
entity to, nor disqualify him from, participation in any other grant of Options
or Restricted Stock.
4. STOCK. The stock subject to Options and Restricted Stock shall be
authorized but unissued shares of Common Stock of the Company, par value $.01
per share (the "Common Stock"), or shares of Common Stock re-acquired by the
Company in any manner. The aggregate number of shares which may be issued
pursuant to the Plan is 5,200,000 plus such additional number of shares as may
become available due to the forfeiture of options granted under the 1992 Stock
Option Plan and 1993 California Stock Option Plan, subject to adjustment as
provided in paragraph 14. Any such shares may be issued as ISOs, Non-Qualified
Options or Restricted Stock so long as the aggregate number of shares so issued
does not exceed such number, as adjusted. If any Option granted under the Plan
shall expire or terminate for any reason without having been exercised in full
or shall cease for any reason to be exercisable in whole or in part, or if any
Restricted Stock shall be reacquired by the Company by exercise of its
repurchase option, the shares subject to such expired or terminated Option and
reacquired shares of Restricted Stock shall again be available for grants of
Options or Restricted Stock under the Plan.
5. INDIVIDUAL PARTICIPANT LIMITATION. Any other provision of this Plan
notwithstanding, the number of shares of Common Stock for which options or
purchase authorizations may be granted in any single fiscal year of the Company
to any participant shall not exceed 500,000 shares (the "Individual Limit"). For
purposes of the foregoing limitation, if any option or purchase authorization is
canceled, the cancelled option or purchase authorization shall continue to be
counted against the Individual Limit; if after grant the exercise price of an
option or purchase authorization is modified, the transaction shall be treated
as the cancellation of the option or purchase authorization and the grant of
anew option or purchase authorization. In any such case, both the option or
purchase authorization that is cancelled and the option or purchase
authorization deemed to be granted shall be counted against the Individual
Limit.
6. GRANTS UNDER THE PLAN. Options or Restricted Stock may be granted under
the Plan at any time on or after August 8, 1994 and prior to August 8, 2004. Any
such grants shall be subject to the receipt, within 12 months of August 8,1994,
of the approval of stockholders as provided in paragraph 18. The date of grant
of an Option under the Plan will be the date specified by the Committee at the
time it awards the Option; provided, however, that such date shall not be prior
to the date of award. The Committee shall have the right, with the consent of
the optionee, to convert an ISO granted under the Plan to a Non-Qualified Option
pursuant to paragraph 16.
7. MINIMUM OPTION PRICE: ISO LIMITATIONS. (a) The price per share specified
in the agreement relating to each Option granted under the Plan shall not be
less than the fair market value per share of Common Stock on the date of such
grant. In the case of an ISO to be granted to an employee owning stock
possessing more than ten percent of the total combined voting power of all
classes of stock of the Company or any Related Corporation, the price per share
specified in the agreement relating to such ISO shall not be less than 110
percent of the fair market value of Common Stock on the date of grant.
<PAGE> 3
- 3 -
(b) In no event shall the aggregate fair market value (determined at the
time the option is granted) of Common Stock for which ISOs granted to any
employee are exercisable for the first time by such employee during any calendar
year (under all stock option plans of the Company and any Related Corporation)
exceed $100,000.
(c) If, at the time an Option is granted under the Plan, the Company's
Common Stock is publicly traded, "fair market value" shall be determined as of
the last business day for which the prices or quotes discussed in this sentence
are available prior to the date such Option is granted and shall mean (i) the
average (on that date) of the high and low prices of the Common Stock on the
principal national securities exchange on which the Common Stock is traded, if
such stock is then traded on a national securities exchange; or (ii) the last
reported sale price (on that date) of the Common Stock on the Nasdaq National
Market, if the Common Stock is not then traded on a national securities
exchange; or (iii) the closing bid price (or average of bid prices) last
quoted(on that date) by an established quotation service for over-the-counter
securities, if the Common Stock is not reported on the Nasdaq National Market or
on a national securities exchange. However, if the Common Stock is not publicly
traded at the time an Option is granted under the Plan, "fair market value"
shall be deemed to be the fair value of the Common Stock as determined by the
Committee after taking into consideration all factors which it deems
appropriate, including, without limitation, recent sale and offer prices of the
Common Stock in private transactions negotiated at arm's length.
8. OPTION DURATION. Subject to earlier termination as provided in
paragraphs 10 and 11, each Option shall expire on the date specified by the
Committee, but not more than ten years from the date of grant and in the case of
ISOs granted to an employee owning stock possessing more than ten percent of the
total combined voting power of all classes of stock of the Company or any
Related Corporation, not more than five years from date of grant. Subject to
earlier termination as provided in paragraphs 10 and 11, the term of each ISO
shall be the term set forth in the original instrument granting such ISO, except
with respect to any part of such ISO that is converted into a Non-Qualified
Option pursuant to paragraph 16.
9. EXERCISE OF OPTION. Subject to the provisions of paragraphs 10 through
13, each Option granted under the Plan shall be exercisable as follows:
(a) The Option shall either be fully exercisable on the date of grant or
shall become exercisable thereafter in such installments as the Committee may
specify.
(b) Once an installment becomes exercisable it shall remain exercisable
until expiration or termination of the Option, unless otherwise specified by the
Committee.
(c) Each Option or installment may be exercised at any time or from time to
time, in whole or in part, for up to the total number of shares with respect to
which it is then exercisable.
(d) The Committee shall have the right to accelerate the date of exercise
of any installment; provided that the Committee shall not accelerate the
exercise date of any installment of any Option granted to any employee as an ISO
(and not previously converted into a Non-Qualified Option pursuant to paragraph
16) if such acceleration would violate the annual vesting limitation contained
in Section 422(d) of the Code, which provides generally that the aggregate fair
market value (determined at the time the option is granted) of the stock with
respect to which ISOs granted to any employee are exercisable for the first time
by such employee during any calendar year (under all plans of the Company and
any Related Corporation) shall not exceed $100,000.
10. TERMINATION OF EMPLOYMENT. If an ISO optionee ceases to be employed by
the Company or any Related Corporation other than by reason of death or
disability as provided in paragraph 11, no further installments of his ISOs
shall become exercisable, and his ISOs shall terminate after the passage of 90
days from the date of termination of his employment, but in no event later than
on their specified expiration dates except to the extent that such ISOs (or
unexercised installments thereof) have been converted into Non-Qualified Options
pursuant to paragraph 16. Leave of absence with the written approval of the
Committee shall not be considered an interruption of employment under the Plan,
provided that such written approval contractually obligates the Company or any
Related Corporation to continue the employment of the employee after the
approved period of absence.
<PAGE> 4
- 4 -
Employment shall also be considered as continuing uninterrupted during any other
bona fide leave of absence (such as those attributable to illness, military
obligations or governmental service) provided that the period of such leave does
not exceed 90 days or, if longer, any period during which such optionee's right
to reemployment is guaranteed by statute. Nothing in the Plan shall be deemed to
give any grantee of any Option or Restricted Stock the right to be retained in
employment or other service by the Company or any Related Corporation for any
period of time. ISOs granted under the Plan shall not be affected by any change
of employment within or among the Company and Related Corporations, so long as
the optionee continues to be an employee of the Company or any Related
Corporation. In granting any Non-Qualified Option, the Committee may specify
that such Non-Qualified Option shall be subject to the restrictions set forth
herein with respect to ISOs, or to such other termination or cancellation
provisions as the Committee may determine. Notwithstanding the provisions in
this paragraph 10, the Committee may, in its sole discretion, establish
different terms and conditions pertaining to the effect of a participant's
termination of employment by the Company.
11. DEATH; DISABILITY; DISSOLUTION. If an optionee ceases to be employed by
the Company and all Related Corporations by reason of his death, any Option of
his may be exercised, to the extent of the number of shares with respect to
which he could have exercised it on the date of his death, by his estate,
personal representative or beneficiary who has acquired the Option by will or by
the laws of descent and distribution, at any time prior to the earlier of the
Option's specified expiration date or one year from the date of the optionee's
death.
If an optionee ceases to be employed by the Company and all Related
Corporations by reason of his disability, he shall have the right to exercise
any Option held by him on the date of termination of employment, to the extent
of the number of shares with respect to which he could have exercised it on that
date, at any time prior to the earlier of the Option's specified expiration date
or one year from the date of the termination of the optionee's employment. For
the purposes of the Plan, the term "disability" shall have the meaning assigned
to it in Section 22(e)(3) of the Code or any successor statute.
In the case of a partnership, corporation or other entity holding a
Non-Qualified Option, if such entity is dissolved, liquidated, becomes insolvent
or enters into a merger or acquisition with respect to which such optionee is
not the surviving entity, such Option shall terminate immediately.
12. ASSIGNABILITY. No Option shall be assignable or transferable by the
optionee except by will or by the laws of descent and distribution or pursuant
to a qualified domestic relations order, and during the lifetime of the Optionee
each Option shall be exercisable only by him.
13. TERMS AND CONDITIONS OF OPTIONS. Options shall be evidenced by
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 12 hereof and may contain such
other provisions as the Committee deems advisable that are not inconsistent with
the Plan, including transfer and repurchase restrictions applicable to shares of
Common Stock issuable upon exercise of Options. The Committee may from time to
time confer authority and responsibility on one or more of its own members
and/or one or more officers of the Company to execute and deliver such
instruments. The proper officers of the Company are authorized and directed to
take any and all action necessary or advisable from time to time to carry out
the terms of such instruments.
14. ADJUSTMENTS. Upon the happening of any of the following described
events, an optionee's rights with respect to Options granted to him hereunder
shall be adjusted as hereinafter provided:
(a) In the event the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the surviving
corporation or if the Company is liquidated or sells or otherwise disposes of
all or substantially all of its assets to another corporation while unexercised
options remain outstanding under the Plan, (i) subject to the provisions of
clauses (iii), (iv) and (v) below, after the effective date of such merger,
consolidation or sale, as the case may be, each holder of an outstanding option
shall be entitled, upon exercise of such option, to receive in lieu of shares of
Common Stock, shares of such stock or other securities as the holders of shares
of Common Stock received pursuant to the terms of the merger, consolidation or
sale; or (ii) the Board may waive any discretionary limitations imposed with
respect to the exercise of the option so that all options
<PAGE> 5
- 5 -
from and after a date prior to the effective date of such merger, consolidation,
liquidation or sale, as the case may be, specified by the Board, shall be
exercisable in full; or (iii) all outstanding options may be cancelled by the
Board as of the effective date of any such merger, consolidation, liquidation or
sale, provided that notice of such cancellation shall be given to each holder of
an option, and each such holder thereof shall have the right to exercise such
option in full(without regard to any discretionary limitations imposed with
respect to the option) during a 30-day period preceding the effective date of
such merger, consolidation, liquidation or sale; or (iv) all outstanding options
may be cancelled by the Board as of the date of any such merger, consolidation,
liquidation or sale, provided that notice of such cancellation shall be given to
each holder of an option and each such holder thereof shall have the right to
exercise such option but only to the extent exercisable in accordance with any
discretionary limitations imposed with respect to the option prior to the
effective date of such merger, consolidation, liquidation or sale; or (v) the
Board may provide for the cancellation of all outstanding options and for the
payment to the holders thereof of some part or all of the amount by which the
value thereof exceeds the payment, if any, which the holder would have been
required to make to exercise such option.
(b) In the event the Company shall issue any of its shares as a stock
dividend upon or with respect to the shares of stock of the class which shall at
the time be subject to option hereunder, each optionee upon exercising an Option
shall be entitled to receive (for the purchase price paid upon such exercise)the
shares as to which he is exercising his Option and, in addition thereto (at no
additional cost), such number of shares of the class or classes in which such
stock dividend or dividends were declared or paid, and such amount of cash in
lieu of fractional shares, as he would have received if he had been the holder
of the shares as to which he is exercising his Option at all times between the
date of grant of such Option and the date of its exercise.
(c) Notwithstanding the foregoing, any adjustments made pursuant to
subparagraph (a) or (b) shall be made only after the Committee, after consulting
with counsel for the Company, determines whether such adjustments with respect
to ISOs will constitute a "modification" of such ISOs as that term is defined in
Section 424 of the Code, or cause any adverse tax consequences for the holders
of such ISOs. No adjustments shall be made for dividends paid in cash or in
property other than securities of the Company.
(d) No fractional shares shall actually be issued under the Plan. Any
fractional shares which, but for this subparagraph (d), would have been issued
to an optionee pursuant to an Option, shall be deemed to have been issued and
immediately sold to the Company for their fair market value, and the optionee
shall receive from the Company cash in lieu of such fractional shares.
(e) Upon the happening of any of the foregoing events described in
subparagraphs (a) or (b) above, the class and aggregate number of shares set
forth in paragraph 4 hereof which are subject to Options which previously have
been or subsequently may be granted under the Plan shall also be appropriately
adjusted to reflect the events specified in such subparagraphs. The Committee
shall determine the specific adjustments to be made under this paragraph 14, and
subject to paragraph 2, its determination shall be conclusive.
15. MEANS OF EXERCISING OPTIONS. An Option (or any part or installment
thereof) shall be exercised by giving written notice to the Company at its
principal office address. Such notice shall identify the Option being exercised
and specify the number of shares as to which such Option is being exercised,
accompanied by full payment of the purchase price therefor (i) in United States
dollars in cash or by check, (ii) at the discretion of the Committee, through
delivery of shares of Common Stock having fair market value equal as of the date
of the exercise to the cash exercise price of the Option, (iii) at the
discretion of the Committee, by delivery of the optionee's personal recourse
note bearing interest payable not less than annually at no less than 100% of the
lowest applicable Federal rate, as defined in Section 1274(d) of the Code, (iv)
at the discretion of the Committee, by delivery to the Company of irrevocable
instructions to a broker to(a) either sell the shares subject to the option or
purchase authorization being exercised or hold such shares as collateral for a
margin loan and (b) promptly deliver to the Company the amount of the sale or
loan proceeds required to pay the exercise price or purchase price, as the case
may be, or (v) at the discretion of the Committee, by any combination of (i),
(ii), (iii) and (iv)above. If the Committee exercises its discretion to permit
payment of the exercise price of an ISO by means of the methods set forth in
clauses (ii),(iii) or (iv) of the preceding sentence, such discretion shall be
exercised in writing at the time of the grant of the ISO in question. The holder
of an Option shall not have the rights of a shareholder with respect
<PAGE> 6
- 6 -
to the shares covered by his Option until the date of issuance of a stock
certificate to him for such shares. Except as expressly provided above in
paragraph 14 with respect to change in capitalization and stock dividends, no
adjustment shall be made for dividends or similar rights for which the record
date is before the date such stock certificate is issued.
16. CONVERSION OF ISOS INTO NON-QUALIFIED OPTIONS: TERMINATION OF ISOS. The
Committee, at the written request of any optionee, may in its discretion take
such actions as may be necessary to convert such optionee's ISOs (or any
installments or portions of installments thereof) that have not been exercised
on the date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the optionee is an employee of
the Company or a Related Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of the appropriate installments of such Options. At
the time of such conversion, the Committee (with the consent of the optionee)
may impose such conditions on the exercise of the resulting Non-Qualified
Options as the Committee in its discretion may determine, provided that such
conditions shall not be inconsistent with this Plan. Nothing in the Plan shall
be deemed to give any optionee the right to have such optionee's ISOs converted
into Non-Qualified Options and no such conversion shall occur until and unless
the Committee takes appropriate action. The Committee, with the consent of the
optionee, may also terminate any portion of any ISO that has not been exercised
at the time of such termination.
17. RESTRICTED STOCK. Each grant of Restricted Stock under the Plan shall
be evidenced by an instrument (a "Restricted Stock Agreement") in such form as
the Committee shall prescribe from time to time in accordance with the Plan and
shall comply with the following terms and conditions, and with such other terms
and conditions as the Committee, in its discretion, shall establish:
(a) The Committee shall determine the number of shares of Common Stock to
be issued to an eligible person pursuant to the grant of Restricted Stock, and
the extent, if any, to which they shall be issued in exchange for cash, other
consideration, or both.
(b) Shares issued pursuant to a grant of Restricted Stock may not be sold,
assigned, transferred, pledged or otherwise disposed of, except by will or the
laws of descent and distribution or as otherwise determined by the Committee in
the Restricted Stock Agreement, for such period as the Committee shall
determine, from the date on which the Restricted Stock is granted (the
"Restricted Period"). The Company will have the option to repurchase the Common
Stock at such price as the Committee shall have fixed in the Restricted Stock
Agreement, which option will be exercisable (i) if the Participant's continuous
employment or performance of services for the Company and the Related
Corporations shall terminate prior to the expiration of the Restricted Period,
(ii) if, on or prior to the expiration of the Restricted Period or the earlier
lapse of such repurchase option, the Participant has not paid to the Company an
amount equal to any federal, state, local or foreign income or other taxes which
the Company determines is required to be withheld in respect of such Restricted
Stock or (iii) under such other circumstances as determined by the Committee in
its discretion. Such repurchase option shall be exercisable on such terms, in
such manner and during such period as shall be determined by the Committee in
the Restricted Stock Agreement. Each certificate for shares issued as Restricted
Stock shall bear an appropriate legend referring to the foregoing repurchase
option and other restrictions; shall be deposited by the stockholder with the
Company, together with a stock power endorsed in blank; or shall be evidenced in
such other manner permitted by applicable law as determined by the Committee in
its discretion. Any attempt to dispose of any such shares in contravention of
the foregoing repurchase option and other restrictions shall be null and void
and without effect. If shares issued as Restricted Stock shall be repurchased
pursuant to the repurchase option described above, the stockholder, or in the
event of his death, his personal representative, shall forthwith deliver to the
Secretary of the Company the certificates for the shares, accompanied by such
instrument of transfer, if any, as may reasonably be required by the Secretary
of the Company. If the repurchase option described above is not exercised by the
Company, such repurchase option and the restrictions imposed pursuant to the
first sentence of this subparagraph (b) shall terminate and be of no further
force and effect.
(c) If a person who has been in continuous employment or performance of
services for the Company or a Related Corporation since the date on which
Restricted Stock was granted to him shall, while in such
<PAGE> 7
- 7 -
employment or performance of services, die, or terminate such employment or
performance of services by reason of disability or by reason of early, normal or
deferred retirement under an approved retirement program of the Company or a
Related Corporation (or such other plan or arrangement as may be approved by the
Committee in its discretion, for this purpose) and any of such events shall
occur after the date on which the Restricted Stock was granted to him and prior
to the end of the Restricted Period, the Committee may determine to cancel the
repurchase option (and any and all other restrictions) on any or all of the
shares of Restricted Stock; and the repurchase option shall become exercisable
at such time as to the remaining shares, if any.
18. TERM AND AMENDMENT OF PLAN. This Plan was adopted by the Board on
August 8, 1994, subject to approval by the stockholders of the Company. The Plan
shall expire on August 7, 2004 (except as to Options and Restricted Stock
outstanding on that date). Subject to the provisions of paragraph 6 above,
Options and Restricted Stock may be granted under the Plan by the Committee
prior to the date of stockholder approval of the Plan. If the approval of
stockholders is not obtained by August 8, 1995, any grants of Options or
Restricted Stock under the Plan made prior to that date will be rescinded. The
Board may terminate or amend the Plan in any respect at any time, except that
any amendment that (a) increases the total number of shares that may be issued
under the Plan (except by adjustment pursuant to paragraph 14); (b) changes the
class of persons eligible to participate in the Plan, or (c) materially
increases the benefits to participants under the Plan, shall be subject to
approval by stockholders obtained within 12 months before or after the Board
adopts a resolution authorizing any of the foregoing amendments, and shall be
null and void if such approval is not obtained. Termination or any modification
or amendment of the Plan shall not, without consent of a participant, affect his
rights under any Option or Restricted Stock previously granted to him.
19. APPLICATION OF FUNDS. The proceeds received by the Company from the
sale of shares pursuant to Options and Restricted Stock authorized under the
Plan shall be used for general corporate purposes.
20. GOVERNMENTAL REGULATION. The Company's obligation to sell and deliver
shares of the Common Stock under this Plan is subject to the approval of any
governmental authority required in connection with the authorization, issuance
or sale of such shares.
21. (a) WITHHOLDING TAXES; DELIVERY OF SHARES. The Company's obligation to
deliver shares of Common Stock upon exercise of an option or purchase
authorization, in whole or in part, shall be subject to the participant's
satisfaction of all applicable federal, state and local income and employment
tax withholding obligations. The participant may satisfy the obligation, in
whole or in part, by electing to (1) have the Company withhold shares of Common
Stock or (2) deliver to the Company already-owned shares of Common Stock having
a value equal to the amount required to be withheld; provided, however, that
participants who are subject to the requirements of Section 16 of the Exchange
Act ("Section 16 Persons") shall not have the benefit of the foregoing election
but rather the Company shall, in all cases where tax withholding is required
with respect to such participants, withhold shares of Common Stock having a
value equal to such withholding obligations. The value of shares to be withheld
or delivered shall be based on the fair market value of the shares on the date
the amount of tax to be withheld is to be determined (the "Tax Date"). The
election by a participant who is not a Section 16 Person to have shares withheld
for this purpose will be subject to the following restrictions: (1) the election
must be made prior to the Tax Date, (2) the election must be irrevocable and
(3)the election will be subject to the disapproval of the Committee.
(b) WITHHOLDING OF ADDITIONAL INCOME TAXES. The Company may, in accordance
with the Code, upon exercise of a Non-Qualified Option or the purchase of Common
Stock for less than its fair market value or the lapse of restrictions on
Restricted Stock or the making of a Disqualifying Disposition(as defined in
paragraph 22), require the employee to pay additional withholding taxes in
respect of the amount that is considered compensation includable in such
person's gross income.
22. NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION. Each employee who
receives ISOs shall agree to notify the Company in writing immediately after the
employee makes a disqualifying disposition of any Common Stock received pursuant
to the exercise of an ISO (a "Disqualifying Disposition"). Disqualifying
Disposition means any disposition (including any sale) of such stock before the
later of (a) two years after the
<PAGE> 8
- 8 -
employee was granted the ISO under which he acquired such stock or (b) one year
after the employee acquired such stock by exercising such ISO. If the employee
has died before such stock is sold, these holding period requirements do not
apply and no Disqualifying Disposition will thereafter occur.
23. GOVERNING LAWS; CONSTRUCTION. The validity and construction of the Plan
and the instruments evidencing Options and Restricted Stock shall be governed by
the laws of the Commonwealth of Massachusetts. In construing this Plan, the
singular shall include the plural and the masculine gender shall include the
feminine and neuter, unless the context otherwise requires.
=================
Adopted by the Board of Directors on August 8, 1994, with the approval of
the stockholders on July 22, 1994. Amended by the Board of Directors on May
23,1995, with the approval of the stockholders on August 29, 1995. Amended by
the Board of Directors on February 28, 1996, with the approval of the
stockholders on June 19, 1996. Amended by the Board of Directors on May 13,
1997, with the approval of the stockholders on June 25, 1997. The share numbers
set forth in the Plan reflect the effect of the Company's two for one stock
split, in the form of 100% stock dividend, that was effective on July 3, 1996.
<PAGE> 1
Exhibit 4.4
SYSTEMSOFT CORPORATION
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
This Amended and Restated Non-Qualified Stock Option Agreement dated as of
February 20, 1998 (the "AGREEMENT") by and between SystemSoft Corporation, a
Delaware corporation (the "COMPANY"), with a principal place of business in
Natick, Massachusetts, and Deborah M. Besemer (the "OPTIONEE"):
WITNESSETH:
WHEREAS, the Board of Directors of the Company authorized the grant of a
stock option upon certain terms and conditions set forth in that certain
Non-Qualified Stock Option Agreement dated as of November 25, 1997; and
WHEREAS, the Company and the Optionee desire to amend and restate the terms
and conditions thereof as set forth in this Amended and Restated Non-Qualified
Stock Option Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual covenants
and agreements herein contained, the Company and the Optionee agree as follows:
1. GRANT; OPTION EXERCISE PRICE. The Company hereby grants to the Optionee,
and the Optionee hereby accepts, the right and option (hereinafter called the
"OPTION") to purchase all or any part of an aggregate of 500,000 shares of the
Company's Common Stock, $.01 par value (the "COMMON STOCK"), at a price of
$6.5625 per share (the "OPTION PRICE"), which represents the fair market value
of the stock on the date of grant, on the terms and conditions herein set forth.
2. TERM AND EXERCISABILITY OF OPTION. If the Optionee has continued to be
employed by the Company on the following dates, the Optionee may exercise this
option for the number of shares set forth opposite the applicable date:
November 25, 1998 125,000 shares
On the 25th day of each up to an additional 31,250 shares (until all
February, May, August and 500,000 shares subject to this Agreement and
November are fully exercisable)
beginning February, 1999
except that, on and after the Board of Directors of the Company or a committee
thereof which is authorized to do so determines that the following conditions
have been met for a fiscal quarter occurring after the date hereof, 31,250
shares (up to an aggregate of 125,000 shares) subject to this Option which would
have otherwise become exercisable in the fourth year hereunder shall become
immediately exercisable as follows:
(a) beginning in the first quarter of fiscal 1999, revenue and earnings
growth must be progressing at a reasonable growth rate, based upon the Company's
expectations of achieving approximately $49,000,000 in fiscal 1999, with
quarterly revenue and earnings targets as set by the fiscal 1999 management
plan, and
(b) the Board of Directors of the Company (or a committee thereof which is
authorized to do so) has determined that you are: building a world class sales
organization with commensurate results; executing effective team building
strategies and results; establishing and driving organizational skills
throughout the Company;
<PAGE> 2
- 2 -
driving new products into new markets; building an infrastructure to support the
Company's next growth phase and supporting that with an efficient, optimized
organization.
In the event that the Board of Directors of the Company or a committee
thereof which is authorized to do so determines that for any given quarter these
conditions are not achieved, then the options for that quarter would vest
according to the normal four year vesting schedule.
The foregoing rights are cumulative and, while the Optionee continues to be
employed by the Company, may be exercised up to and including the date which is
ten (10) years from the date this option is granted. All of the foregoing rights
are subject to Sections 3 and 4, as appropriate, if the Optionee's employment is
terminated or if the Optionee dies or becomes disabled while in the employ of
the Company.
3. TERMINATION OF EMPLOYMENT. If the Optionee ceases to be employed by the
Company and any subsidiary of the Company, other than by reason of death or
disability as defined in Section 4 hereof, no further installments of this
Option shall become exercisable, and this Option shall terminate (and may no
longer be exercised) after the passage of 90 days from the Optionee's last day
of employment, but in no event later than the scheduled expiration date. In such
a case, the Optionee's only rights hereunder shall be those which are properly
exercised before termination of this Option.
4. DEATH; DISABILITY.
(a) DEATH. If the Optionee dies while in the employ of the Company or
any Related Corporation, this Option may be exercised in whole or in part, to
the extent otherwise exercisable on the date of her death, by the Optionee's
estate, personal representative or beneficiary to whom this Option has been
assigned pursuant to Section 6, at any time or times during the period of twelve
months following the Optionee's date of death, but not later than the scheduled
expiration date.
(b) DISABILITY. If the Optionee ceases to be employed by the Company
and all Related Corporations by reason of her disability (as defined in Section
22(e)(3) of the Internal Revenue Code of 1986, as amended (the "Code")), the
Optionee shall have the right at any time or times during the period of twelve
months following termination of Optionee's employment to exercise the Option in
whole or in part with respect to shares under the Option not purchased prior to
termination of Optionee's employment, in the same manner and to the same extent
that the Optionee could have exercised the Option at the date of termination of
the Optionee's employment, but not later than the scheduled expiration date.
(c) EFFECT OF TERMINATION. At the expiration of the twelve-month
period provided in paragraph (a) or (b) of this Section 4 or the scheduled
expiration date, whichever is the earlier, this Option shall terminate (and
shall no longer be exercisable) and the only rights hereunder shall be those as
to which the Option was properly exercised before such termination.
5. METHOD OF EXERCISE; PAYMENT OF PRICE. To the extent that the right to
purchase shares of Common Stock has accrued hereunder, this Option may be
exercised from time to time by delivering to the Company written notice of the
number of shares with respect to which the Option is being exercised accompanied
by full payment of the Option Price for such shares (i) in United States dollars
in cash or by check, (ii) through delivery of shares of Common Stock of the
Company having fair market value equal as of the date of the exercise to the
cash exercise price of the Option, (iii) by delivery to the Company of
irrevocable instructions to a broker to (a) either sell the shares subject to
the option being exercised or hold such shares as collateral for a margin loan
and (b) promptly deliver to the Company the amount of the sale or loan proceeds
required to pay the exercise price. Unless the Company otherwise consents, an
option exercise notice may be delivered to the Company not more often than once
in any twelve-month period.
<PAGE> 3
- 3 -
6. OPTION NOT TRANSFERABLE. The Option is not assignable or transferable by
the Optionee, except by will or by the laws of descent and distribution or
pursuant to a qualified domestic relations order, and is exercisable during the
lifetime of the Optionee only by the Optionee.
7. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Optionee shall have no
rights as a stockholder with respect to any shares covered by the Option until
the Optionee becomes the holder of record of such shares. Except as is expressly
provided herein with respect to certain changes in the capitalization of the
Company, no adjustment shall be made for dividends or similar rights for which
the record date is prior to the date on which the Optionee becomes the holder of
record of such shares.
8. NO OBLIGATION TO CONTINUE EMPLOYMENT. Nothing contained in this
Agreement shall be construed or deemed by any person under any circumstances to
bind the Company or any of its affiliates to continue the employment of the
Optionee for any vesting period described herein, nor shall this Agreement be
construed to create any duty of the Company or any of its affiliates or any of
its other shareholders to the Optionee, or any duty of the Optionee to the
Company or any of its other shareholders, comparable to the duties which
partners or joint venturers may owe each other.
9. RESTRICTIONS ON TRANSFER; LEGEND. Shares of Common Stock received by the
Optionee upon exercise of this Option will be of an illiquid nature and will be
deemed to be "restricted securities" for purposes of the Securities Act of 1933,
as amended (the "Securities Act"). Accordingly, such shares shall have a legend
placed thereon and must be sold in compliance with the registration requirements
of the Securities Act or an exemption therefrom.
10. WITHHOLDING TAXES. The Optionee hereby agrees that the Company may
withhold from the Optionee's wages or other remuneration the appropriate amount
of federal, state and local taxes attributable to the Optionee's exercise of any
portion of this Option. At the Company's discretion, the amount required to be
withheld may be withheld in cash from such wages or other remuneration, or in
kind from the Common Stock otherwise deliverable to the Optionee on exercise of
this option. The Optionee further agrees that, if the Company does not withhold
an amount from the Optionee's wages or other remuneration sufficient to satisfy
the Company's withholding obligation, the Optionee will reimburse the Company on
demand, in cash, for the amount underwithheld under applicable tax laws.
11. ADJUSTMENTS. Upon the occurrence of any of the following events, the
Optionee's rights shall be adjusted as hereinafter provided:
(a) STOCK DIVIDENDS AND STOCK SPLITS. If the shares of Common Stock shall
be subdivided or combined into a greater or smaller number of shares or if the
Company shall issue any shares of Common Stock as a stock dividend on its
outstanding Common Stock, the number of shares of Common Stock deliverable upon
the exercise of this option shall be appropriately increased or decreased
proportionately, and appropriate adjustments shall be made in the purchase price
per share to reflect such subdivision, combination or stock dividend.
(b) CONSOLIDATIONS OR MERGERS. If the Company is to be consolidated with or
acquired by another entity in a merger, sale of all or substantially all of the
Company's assets or otherwise (an "ACQUISITION"), the committee or the board of
directors of any entity assuming the obligations of the Company hereunder (the
"SUCCESSOR BOARD"), shall either (i) make appropriate provision for the
continuation of this Option by substituting on an equitable basis for the shares
then subject to such Options either (a) the consideration payable with respect
to the outstanding shares of Common Stock in connection with the Acquisition,
(b) shares of stock of the surviving or successor corporation or (c) such other
securities as the Successor Board deems appropriate, the fair market value of
which shall not materially exceed the fair market value of the shares of Common
Stock subject to this Option immediately preceding the Acquisition; or (ii) upon
written notice to the Optionee, provide that this Option must be exercised, to
the extent then exercisable or to be exercisable as a result of the Acquisition,
within a specified number of days of the date of such notice, at the end of
which period this Option shall terminate; or (iii) terminate
<PAGE> 4
- 4 -
this Option in exchange for a cash payment equal to the excess of the fair
market value of the shares subject to this Option (to the extent then
exercisable or to be exercisable as a result of the Acquisition) over the
exercise price thereof.
(c) RECAPITALIZATION OR REORGANIZATION. In the event of a recapitalization
or reorganization of the Company (other than a transaction described in
subparagraph (b) above) pursuant to which securities of the Company or of
another corporation are issued with respect to the outstanding shares of Common
Stock, the Optionee upon exercising this Option shall be entitled to receive for
the purchase price paid upon such exercise the securities she would have
received if she had exercised this option prior to such recapitalization or
reorganization.
(d) DISSOLUTION OR LIQUIDATION. In the event of the proposed dissolution or
liquidation of the Company, this Option will terminate immediately prior to the
consummation of such proposed action.
12. LOCK-UP AGREEMENT. The Optionee agrees that in connection with an
underwritten public offering of Common Stock, upon the request of the Company or
the managing or lead underwriter for such public offering, this Option and the
shares of Common Stock issued upon exercise hereof may not be sold, offered for
sale or otherwise disposed of without the prior written consent of the Company
or such underwriter, as the case may be, for at least 180 days after the
effectiveness of the registration statement filed in connection with such
offering, or such longer period of time as the Board of Directors may determine
if all of the Company's directors and officers agree to be or are similarly
bound. The lock-up agreement established pursuant to this Section 12 shall have
perpetual duration.
13. GENERAL PROVISIONS.
(a) AMENDMENT; WAIVERS. This Agreement contains the full and complete
understanding and agreement of the parties hereto as to the subject matter
hereof, and supersedes all proposals, written or oral, and all other
communications between the parties relating to the grant of options or the
acceleration of vesting of any such options including, without limitation, those
provisions set forth in that certain offer letter dated November 4, 1997. This
Agreement may not be modified or amended, nor may any provision hereof be
waived, except by a further written agreement duly signed by each of the
parties. The waiver by either of the parties hereto of any provision hereof in
any instance shall not operate as a waiver of any other provision hereof or in
any other instance.
(b) BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, representatives, successors and assigns.
(c) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of laws thereof.
(d) CONSTRUCTION. The titles of the Sections of this Agreement are included
for convenience only and shall not be construed as modifying or affecting their
provisions.
(e) NOTICES. Any notice in connection with this Agreement shall be deemed
to have been properly delivered if it is in writing and is delivered in hand or
sent by mail to the party addressed as follows, unless another address has been
substituted by notice so given:
To the Optionee: To the address as set forth on the signature page hereof.
To the Company: SystemSoft Corporation
One Innovation Drive
Natick, Massachusetts 01760
Attention: President
<PAGE> 5
- 5 -
IN WITNESS WHEREOF, the Company and the Optionee have caused this Agreement
to be executed as of the 20th day of February, 1998.
SYSTEMSOFT CORPORATION
By: /s/ Paul J. Pedevillano
-------------------------------
Title: Chief Financial Officer
/s/ Deborah M. Besemer
---------------------------
Deborah M. Besemer
Address:
17 Lafayette Drive
Sudbury, MA
<PAGE> 1
Exhibit 4.5
SYSTEMSOFT CORPORATION
AMENDED AND RESTATED 1994 EMPLOYEE STOCK PURCHASE PLAN
Effective as of July 1, 1998
1. PURPOSE. The purpose of this Employee Stock Purchase Plan (the "Plan")
is to provide employees of SystemSoft Corporation, a Delaware
corporation (the "Company"), and its subsidiaries, an opportunity to
purchase Common Stock, $.01 par value, of the Company (the "Shares").
The Plan is intended to qualify as an "employee stock purchase plan"
within the meaning of Section 423 of the Internal Revenue Code of
1986, as amended (the "Code").
2. ADMINISTRATION OF THE PLAN. The Board of Directors (the "Board") or
any committee or persons to whom it delegates its authority (the
"Administrator") shall administer, interpret and apply all provisions
of the Plan. The Administrator may waive such provisions of the Plan
as it deems necessary to meet special circumstances not anticipated or
covered expressly by the Plan. Nothing contained in this Section shall
be deemed to authorize the Administrator to alter or administer the
provisions of the Plan in a manner inconsistent with the provisions of
Section 423 of the Code. No member of the Administrator shall be
liable for any action or determination made in good faith with respect
to the Plan or any right granted under it.
3. ELIGIBLE EMPLOYEES. Subject to the provisions of paragraphs 8, 9 and
10 below, any individual who is in the full-time employment (as
defined below) of the Company or any of its subsidiaries (as defined
in Section 424(f) of the Code), the employees of which are designated
by the Board as eligible to participate in the Plan, is eligible to
participate in any Offering of Shares (as defined in paragraph 4
below) made by the Company hereunder. Full-time employment shall
include all employees whose customary employment is:
(a) at least 20 hours per week; and
(b) more than five months in the relevant calendar year.
4. OFFERING DATES. From time to time the Company, by action of the Board,
will grant rights to purchase Shares to employees eligible to
participate in the Plan pursuant to one or more offerings (each of
which is an "Offering") on a date or series of dates (each of which is
an "Offering Date") designated for this purpose by the Board.
5. PRICES. The price per share for each grant of rights hereunder shall
be the lesser of:
(a) eighty-five percent (85%) of the fair market value of a
Share on the Offering Date on which such right was granted;
or
(b) eighty-five percent (85%) of the fair market value of a
Share on the date such right is exercised. At its
discretion, the Board may determine a higher price for a
grant of rights.
For purposes of this Plan, the term "fair market value" on any date
means (i) the average (on that date) of the high and low prices for
shares of the Common Stock on the principal national securities
exchange on which the Common Stock is traded, if the Common Stock is
then traded on a national securities exchange; or (ii) the last
reported sale price (on that date) of the Common Stock on the Nasdaq
National Market, if the Common Stock is not then traded on a national
securities exchange; or (iii) the closing bid price (or average of bid
prices) last quoted (on that date) by an established quotation service
for over-the-counter
<PAGE> 2
- 2 -
securities, if the Common Stock is not listed on the Nasdaq National
Market or on a national securities exchange. If the Common Stock is
not publicly traded at the time a right is granted under this Plan,
"fair market value" shall mean the fair market value of the Common
Stock as determined by the Administrator after taking into
consideration all factors which it deems appropriate, including,
without limitation, recent sale and offer prices of shares of the
Common Stock in private transactions negotiated at arm's length.
6. EXERCISE OF RIGHTS AND METHOD OF PAYMENT.
(a) Rights granted under the Plan will be exercisable
periodically on specified dates as determined by the Board.
(b) The method of payment for Shares purchased upon exercise or
rights granted hereunder shall be through regular payroll
deductions or by lump sum cash payment, or both, as
determined by the Board. No interest shall be paid upon
payroll deductions unless specifically provided for by the
Board.
(c) Any payments received by the Company from a participating
employee and not utilized for the purchase of Shares upon
exercise of a right granted hereunder shall be promptly
returned to such employee by the Company after termination
of the right to which the payment relates.
7. TERM OF RIGHTS. Rights granted on any Offering Date shall be
exercisable upon the expiration of such period ("Offering Period"), as
shall be determined by the Board when it authorizes the Offering,
provided that such Offering Period shall in no event be longer than
twenty-seven (27) months.
8. SHARES SUBJECT TO THE PLAN. No more than 1,100,000 Shares may be sold
pursuant to rights granted under the Plan; PROVIDED, HOWEVER, that
appropriate adjustment shall be made in such number, in the number of
Shares covered by outstanding rights granted hereunder, in the
exercise price of the rights and in the maximum number of Shares which
an employee may purchase (pursuant to paragraph 9 below) to give
effect to any mergers, consolidations, reorganizations,
recapitalizations, stock splits, stock dividends or other relevant
changes in the capitalization of the Company occurring after the
effective date of the Plan, provided that no fractional Shares shall
be subject to a right and each right shall be adjusted downward to the
nearest full Share. Any agreement of merger or consolidation will
include provisions for protection of the then existing rights of
participating employees under the Plan. Either authorized and unissued
Shares or issued Shares heretofore or hereafter reacquired by the
Company may be made subject to rights under the Plan. If for any
reason any right under the Plan terminates in whole or in part, Shares
subject to such terminated right may again be subjected to a right
under the Plan.
9. LIMITATIONS ON GRANTS.
(a) No employee shall be granted a right hereunder if such
employee, immediately after the right is granted, would own
stock or rights to purchase stock possessing five percent
(5%) or more of the total combined voting power or value of
all classes of stock of the Company, or of any subsidiary,
computed in accordance with Sections 423(b)(3) and 424(d) of
the Code.
(b) No employee shall be granted a right which permits his right
to purchase shares under all employee stock purchase plans
of the Company and its subsidiaries to accrue at a rate
which exceeds twenty-five thousand dollars ($25,000) (or
such other maximum as may be prescribed from time to time by
the Code) of the fair market value of such Shares
(determined at the time such right is granted) for each
calendar year in which such right is outstanding at any time
in accordance with the provisions of Section 423(b)(8) of
the Code.
(c) No rights granted to participating employees under a single
Offering shall cover more shares than may be purchased at an
exercise price equal to 15% of the compensation payable to
the employees during the Offering not taking into
consideration any changes in the employee's rate
<PAGE> 3
- 3 -
of compensation after the date the employee elects to
participate in the Offering, or such other maximum
percentage of employees' compensation as determined by the
Board from time to time.
10. LIMIT ON PARTICIPATION. Participation in an Offering shall be limited
to eligible employees who elect to participate in such Offering in the
manner and within the time limitation established by the Board when it
authorizes the offering.
11. CANCELLATION OF ELECTION TO PARTICIPATE. An employee who has elected
to participate in an Offering may, unless the employee has waived this
cancellation right at the time of such election in a manner
established by the Board, cancel such election as to all (but not
part) of the rights granted under such Offering by giving written
notice of such cancellation to the Company before the expiration of
the Offering Period. Any amounts paid by the employee for the Shares
or withheld for the purchase of Shares from the employee's
compensation through payroll deductions shall be paid to the employee,
without interest, upon such cancellation.
12. TERMINATION OF EMPLOYMENT. Upon termination of employment for any
reason, including the death of the employee, before the date on which
any rights granted under the Plan are exercisable, all such rights
shall immediately terminate and amounts paid by the employee for the
Shares or withheld for the purchase of Shares from the employee's
compensation through payroll deductions shall be paid to the employee
or to the employee's estate, without interest.
13. EMPLOYEE'S RIGHTS AS STOCKHOLDER. No participating employee shall have
any rights as a stockholder in the Shares covered by a right granted
hereunder until such right has been exercised, full payment has been
made for the corresponding Shares and a certificate representing such
Shares has been issued.
14. RIGHTS NOT TRANSFERABLE. Rights under the Plan are not assignable or
transferable by a participating employee and are exercisable only by
the employee.
15. LIMITS ON SALE OF STOCK PURCHASED UNDER THE PLAN. The Plan is intended
to provide shares of Common Stock for investment and not for resale.
The Company does not, however, intend to restrict or influence any
employee in the conduct of his/her own affairs. An employee may,
therefore, sell Shares purchased under the Plan at any time the
employee chooses, subject to compliance with any applicable Federal or
state securities laws; provided, however, that because of certain
Federal tax requirements, each employee agrees, by entering the Plan,
to promptly give the Company notice of any Shares disposed of within
two years after the date of grant of the applicable right, indicating
the number of such Shares disposed of. THE EMPLOYEE ASSUMES THE RISK
OF ANY MARKET FLUCTUATIONS IN THE PRICE OF THE STOCK.
16. AMENDMENTS TO OR DISCONTINUANCE OF THE PLAN. The Board may at any time
terminate or amend this Plan without notice and without further action
on the part of stockholders of the Company, provided:
(a) that no such termination or amendment shall adversely affect
the then existing rights of any participating employee;
(b) that any such amendment which:
(i) increases the number of Shares subject to the Plan
(subject to the provisions of paragraph 7);
(ii) changes the class of persons eligible to
participate under the Plan; or
(iii) materially increases the benefits accruing to
participants under the Plan
<PAGE> 4
- 4 -
shall be subject to approval of the stockholders of the Company.
17. EFFECTIVE DATE AND APPROVALS. The Plan is being adopted by the Board
on June 8, 1994 to become effective as of said date. The Company's
obligation to offer, sell and deliver its Shares under the Plan is
subject to the approval of its stockholders not later than June 7,
1995 and of any governmental authority required in connection with the
authorized issuance or sale of such Shares and is further subject to
the Company receiving the opinion of its counsel that all applicable
securities laws have been complied with.
18. TERM OF PLAN. No rights shall be granted under the Plan after June 7,
2004.
=================
Adopted by the Board of Directors on June 8, 1994, with the approval of the
stockholders on July 22, 1994. Amended by the Board of Directors on February 28,
1996, with the approval of the stockholders on June 19, 1996, as amended and
restated by the Board of Directors on May 1, 1998, with approval of the
stockholders on July 1, 1998. The share numbers set forth in the Plan reflect
the effect of the Company's two for one stock split, in the form of 100% stock
dividend, that was effective on July 3, 1996.
<PAGE> 1
Exhibit 5.1
----------
TESTA, HURWITZ & THIBEAULT, LLP
----------
ATTORNEYS AT LAW
HIGH STREET TOWER, 125 HIGH STREET
OFFICE (617) 248-7000 BOSTON, MASSACHUSETTS 02110 FAX (617) 248-7100
September 9, 1998
SystemSoft Corporation
2 Vision Drive
Natick, Massachusetts 01760
Re: Registration Statement on Form S-8 Relating to the
1994 Omnibus Stock Plan, Other Employee Benefit Plan and
Amended and Restated 1994 Employee Stock Purchase Plan
--------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Registration Statement on Form S-8
(the "Registration Statement") filed by SystemSoft Corporation (the "Company")
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to an aggregate of 2,100,000 shares of Common Stock, par value
$.01 per share, of the Company (the "Shares").
We are counsel to the Company and are familiar with the proceedings of its
shareholders and Board of Directors. We have examined original or certified
copies of the Company's Second Restated Certificate of Incorporation, as
amended, the Company's Restated By-Laws, the corporate records of the Company to
the date hereof, and such other certificates, documents, records and materials
as we have deemed necessary in connection with 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.
Based upon and subject to the foregoing, we are of the opinion that the
Shares issued or proposed to be issued by the Company pursuant to the 1994
Omnibus Stock Plan (the "Plan"), that certain Amended and Restated Non-Qualified
Stock Option Agreement dated as of February 20, 1998 (the "Agreement"), between
the Company and Deborah M. Besemer or that certain Amended and Restated 1994
Employee Stock Purchase Plan ("Purchase Plan") will be, upon receipt of the
consideration provided for in the Plan, the Agreement or the Purchase Plan, as
the case may be, validly issued, fully paid and nonassessable after issuance of
such Shares in accordance with the terms of the Plan, Agreement or Purchase
Plan, as the case may be.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE> 1
Exhibit 23.2
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 March 4, 1998, on our
audits of the consolidated financial statements and financial statement schedule
of SystemSoft Corporation as of January 31, 1998 and 1997, and for the years
ended January 31, 1998, 1997, and 1996, which reports are included in the Annual
Report on Form 10-K of SystemSoft Corporation for the year ended January 31,
1998.
PricewaterhouseCoopers LLP
Boston, Massachusetts
September 8, 1998
