As filed with the Securities and Exchange Commission on August 30, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VERINT SYSTEMS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-3200514
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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234 CROSSWAYS PARK DRIVE
WOODBURY, NEW YORK 11797
(516) 677-7300
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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VERINT SYSTEMS INC. 2002 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plans)
--------------------------
MR. DAN BODNER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
VERINT SYSTEMS INC.
234 CROSSWAYS PARK DRIVE
WOODBURY, NEW YORK 11797
(516) 677-7300
(Name and address, including zip code,
and telephone number, including area code, of agent for service)
--------------------------
Copies to:
MATTHEW D. BLOCH, ESQ. WILLIAM F. SORIN, ESQ.
JEFFREY NADLER, ESQ. SECRETARY
WEIL, GOTSHAL & MANGES LLP VERINT SYSTEMS INC.
767 FIFTH AVENUE 234 CROSSWAYS PARK DRIVE
NEW YORK, NEW YORK 10153 WOODBURY, NEW YORK 11797
(212) 310-8000 (516) 677-7300
--------------------------
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities Amount to be Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Registered (1) Price Per Share(2) Aggregate Offering Price(2) Registration Fee(3)
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Common Stock, par value $0.001, per share 1,000,000 $8.91 $8,905,000 $820
====================================================================================================================================
(1) Plus such indeterminate number of shares of common stock of the registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the Securities
Act of 1933. In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Verint Systems Inc. 2002
Employee Stock Purchase Plan.
(2) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, as amended, for
the purpose of calculating the maximum aggregate offering price and the
registration fee, the proposed maximum offering price per share was determined
based upon the average of the high and low prices of the registrant's common
stock as reported by the Nasdaq National Market on August 28, 2002.
(3) The registration fee was paid on August 29, 2002.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in Part I of this
Registration Statement on Form S-8 will be sent or given to the plan
participants as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act"). Such documents are not required to be and are
not filed with Securities and Exchange Commission (the "Commission") either as a
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II of this
Form S-8, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE STOCK OPTION PLAN INFORMATION
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) of the
Securities Act or additional information about the Verint Systems Inc. 2002
Employee Stock Purchase Plan and its administrators are available without charge
by contacting:
Verint Systems Inc.
234 Crossways Park Drive
Woodbury, New York 11797
(516) 677-7300
1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Verint Systems
Inc. (the "Company") (File No. 000-49790) are incorporated herein by reference
and made a part hereof:
(a) The Company's 424(b) Prospectus filed with the Commission on
May 16, 2002.
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended April 30, 2002.
(c) The description of the Company's common stock, par value
$0.001, per share, contained in the Registrant's Registration
Statement on Form 8-A, filed with the Commission on May 1,
2002.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all securities covered by
this Registration Statement have been sold or which deregisters all of the
securities then remaining unsold, will be deemed to be incorporated by reference
in this Registration Statement and to be a part of this document from the date
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference in this document will be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this document or in any other subsequently filed
document which also is or is deemed to be incorporated by reference in this
document modifies or supersedes such statement. Any such statement so modified
or superseded will not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of common stock being offered hereby will
be passed upon for Verint Systems Inc. by Weil, Gotshal & Manges LLP, New York,
New York.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law, or DGCL, as
amended, allows a corporation to eliminate the personal liability of directors
of a corporation to the corporation or its stockholders for monetary damages for
2
breach of fiduciary duty as a director, except where the director breached the
duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of the DGCL or obtained an improper personal
benefit.
Section 145 of the DGCL provides, among other things, that the
Company may indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding
other than an action by or in the right of the Company, by reason of the fact
that the person is or was a director, officer, agent or employee of the Company,
or is or was serving at the Company's request as a director, officer, agent or
employee of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding, if such person acting in good
faith and in a manner he or she reasonably believed to be in the best interest,
or not opposed to the best interest, of the Company, and with respect to any
criminal action or proceeding had no reasonable cause to believe his or her
conduct was unlawful. The power to indemnify applies to actions brought by or in
the right of the Company as well, but only to the extent of defense expenses,
including attorneys' fees but excluding amounts paid in settlement, actually and
reasonably incurred and not to any satisfaction of judgment or settlement of the
claim itself, and with the further limitation that in such actions no
indemnification shall be made in the event of any adjudication of liability to
the Company, unless the court believes that in light of all the circumstances
indemnification should apply. Furthermore, under the DGCL, if such person is
successful on the merits or otherwise in the defense of any action referred to
above, or in the defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection herewith.
Section 174 of the DGCL provides, among other things, that a
director, who willfully or negligently approves of an unlawful payment of
dividends or an unlawful purchase or redemption of stock, may be held liable for
such actions. A director who was either absent when the unlawful actions were
approved or dissented at the time, may avoid liability by causing his or her
dissent to such actions to be entered in the books containing minutes of the
meetings of the board of directors at the time such action occurred or
immediately after such absent director receives notice of the unlawful acts.
As permitted by the DGCL, our certificate of incorporation includes a
provision to eliminate the personal liability of our directors for monetary
damages for breach or alleged breach of their fiduciary duties as directors,
subject to limited exceptions. Our certificate of incorporation also provides
that every person who is or was our director, officer, employee or agent or is
or was a director, officer, trustee, employee or agent of any other enterprise,
serving as such at our request, shall be indemnified to the fullest extent
permitted by law for all expenses and liabilities in connection with any
proceeding involving such person in this capacity. The Company entered into an
indemnification agreement with each of its directors and officers under which
3
the Company agreed to provide indemnification and expense reimbursement as
outlined above.
The Company has agreed to indemnify Comverse Technology, Inc.
("Comverse") and its directors, officers, employees and agents against any
liabilities arising out of any claim that any provision of the business
opportunities agreement, entered into by the Company and Comverse, breaches any
duty that may be owed to the Company by or any such person.
Under a Corporate Services Agreement entered into by the Company and
Comverse, Comverse obtained directors' and officers' liability insurance which
also provides coverage for the Company's officers and directors.
Each of the Company's directors who is also a director and/or officer
of Comverse has an indemnification agreement with Comverse. Under this agreement
Comverse has agreed to indemnify such person against losses and expenses, to the
extent permitted by law, incurred by such person in connection with his service
as director and/or officer of Comverse or any of its subsidiaries, including the
Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
4
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of Amendment No. 2 to
the Registrant's Registration Statement on Form S-1 (File No.
333-82300), filed on April 22, 2002, as amended).
4.2 Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.2 of Amendment No. 3 to the Registrant's
Registration Statement on Form S-1 (File No. 333-82300), filed
on April 26, 2002, as amended).
4.3 Specimen Stock Certificate (incorporated by reference to Exhibit
4.1 of Amendment No. 2 to the Registrant's Registration
Statement on Form S-1 (File No. 333-82300), filed on April 22,
2002, as amended).
4.4* Verint Systems Inc. 2002 Employee Stock Purchase Plan.
5.1* Opinion of Weil, Gotshal & Manges LLP.
23.1* Consent of Deloitte & Touche LLP
23.2* Consent of KPMG LLP
23.3* Consent of Weil, Gotshal & Manges LLP (contained in exhibit
5.1).
24.1* Powers of Attorney (included in the signature pages of this
Registration Statement).
- --------------------------------
* filed herewith
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;
(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 the undertakings in paragraph
(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 Company pursuant to Section
13 or Section 15(d) of the Exchange Act, that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
6
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
7
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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, duly
authorized, as of August 28, 2002.
Verint Systems Inc.
By: /s/ Dan Bodner
-------------------------------------
Dan Bodner
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Verint Systems Inc.
(the "Company") and each of us, do hereby constitute and appoint Dan Bodner and
Igal Nissim, or either of them, our true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution, to do any and
all acts and things in our names and on our behalf in our capacities as
directors and officers and to execute any and all instruments for us and in our
names in the capacities indicated above, which said attorneys or agents, or
either of them, may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, and any and all
amendments (including post-effective amendments) to this Registration Statement,
in connection with the public offering of the common stock of the Company,
including specifically but without limitation, power and authority to sign for
us or any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) to such Registration Statement;
and we do hereby ratify and confirm all that the said attorneys and agents, or
their substitute or substitutes, or either of them, shall do or cause to be done
by virtue hereof.
8
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Kobi Alexander Chairman of the Board and Director August 28, 2002
- -----------------------------
Kobi Alexander
/s/ Dan Bodner President and Chief Executive Officer and Director August 28, 2002
- -----------------------------
Dan Bodner
/s/ Igal Nissim Chief Financial Officer and Director August 28, 2002
- ----------------------------- (Principal Financial and Accounting Officer)
Igal Nissim
/s/ William F. Sorin Director August 28, 2002
- -----------------------------
William F. Sorin
/s/David Kreinberg Director August 28, 2002
- -----------------------------
David Kreinberg
/s/ David T. Ledwell Director August 28, 2002
- -----------------------------
David T. Ledwell
/s/ Paul D. Baker Director August 28, 2002
- -----------------------------
Paul D. Baker
Director August 28, 2002
- -----------------------------
Paul L. Robinson
/s/ Harris T. Oliner Director August 28, 2002
- -----------------------------
Harris T. Oliner
/s/ Victor De Marines Director August 28, 2002
- -----------------------------
Victor De Marines
/s/Kenneth A. Minihan Director August 28, 2002
- -----------------------------
Kenneth A. Minihan
/s/ Howard Safir Director August 28, 2002
- -----------------------------
Howard Safir
9
Exhibits Index
- --------------
Exhibit
Number Description
- ------ -----------
4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of Amendment No. 2 to
the Registrant's Registration Statement on Form S-1 (File No.
333-82300), filed on April 22, 2002, as amended).
4.2 Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.2 of Amendment No. 3 to the Registrant's
Registration Statement on Form S-1 (File No. 333-82300), filed
on April 26, 2002, as amended).
4.3 Specimen Stock Certificate (incorporated by reference to Exhibit
4.1 of Amendment No. 2 to the Registrant's Registration
Statement on Form S-1 (File No. 333-82300), filed on April 22,
2002, as amended).
4.4* Verint Systems Inc. 2002 Employee Stock Purchase Plan.
5.1* Opinion of Weil, Gotshal & Manges LLP.
23.1* Consent of Deloitte & Touche LLP
23.2* Consent of KPMG LLP
23.3* Consent of Weil, Gotshal & Manges LLP (contained in exhibit
5.1).
24.1* Powers of Attorney (included in the signature pages of this
Registration Statement).
- --------------------------------
* filed herewith
10
Exhibit 4.4
VERINT SYSTEMS INC.
2002 EMPLOYEE STOCK PURCHASE PLAN
1. Purposes.
The 2002 Employee Stock Purchase Plan of Verint Systems Inc. (the
"Plan") is intended to provide a method whereby employees of Verint Systems Inc.
and its subsidiary and predecessor corporations, if any (hereinafter
collectively referred to, unless the context otherwise requires, the "Company"),
will have an opportunity to acquire a proprietary interest in the Company
through the purchase of shares of Common Stock of the Company. It is the
intention of the Company to have the Plan qualify as an "employee stock purchase
plan" under Section 423 of the Internal Revenue Code of 1986, as amended (the
"Code"). The provisions of the Plan shall, accordingly, be construed so as to
extend and limit participation in a manner consistent with the requirements of
Section 423 of the Code.
2. Definitions.
(a) "Annualized Base Pay" means: (i) for any Employee who was
employed by the Company for an entire twelve-month period ending on the day
prior to an Offering Commencement Date, the Employee's total Base Pay for such
twelve-month period; or (ii) for any Employee not employed for the entire
twelve-month period ending on the day prior to an Offering Commencement Date,
the sum of the Base Pay earned in each of the full calendar months prior to the
Offering Commencement Date during which the Employee was employed by the
Company, divided by the number of full calendar months for which the Employee
was employed, multiplied by twelve.
(b) "Base Pay" means regular straight-time earnings (as the same may
be adjusted from time to time) but excluding payments for overtime, shift
differentials, incentive compensation, sales commissions, bonuses and other
special payments.
(c) "Common Stock" means the common stock of the Company, par value
$.001, or such other class or kind of shares or other securities resulting from
the application of Paragraphs 17 or 20.
(d) "Employee" means any person who is customarily employed for 20 or
more hours per week and more than five months in a calendar year by the Company
or by a Subsidiary Corporation.
(e) "Offering Commencement Date" means the applicable date on which
an Offering under the Plan commences pursuant to Paragraph 4(a).
(f) "Offering Termination Date" means the applicable date on which an
Offering under the Plan terminates pursuant to Paragraph 4(a).
(g) "Subsidiary Corporation" means any present or future corporation
which (i) is a "subsidiary corporation" as that term is defined in Section
424(f) of the Code and (ii) is designated as a participant in the Plan by the
Board of Directors or Committee described in Paragraph 13.
3. Eligibility.
(a) Any Employee who shall have completed three (3) months of
employment and shall be employed by the Company on the applicable Offering
Commencement Date shall be eligible to participate in the Plan.
(b) Any provision of the Plan to the contrary notwithstanding, no
Employee shall be granted an option to participate in the Plan:
(i) if, immediately after the grant, such Employee would own stock,
and/or hold outstanding options to purchase stock, possessing 5% or more of the
total combined voting power or value of all classes of stock of the Company or
of any Subsidiary Corporation (for purposes of this Paragraph the rules of
Section 424(d) of the Code shall apply in determining stock ownership of any
employee); or
(ii) which permits his or her rights to purchase stock under all
employee stock purchase plans maintained by the Company and its subsidiaries to
accrue at a rate which exceeds $25,000 of the fair market value of the stock
(determined at the time such option is granted) for each calendar year in which
such option is outstanding at any time.
4. Offering Dates.
(a) The Plan will be implemented by semiannual offerings (referred to
herein collectively as "Offerings" and individually as an "Offering") of a
maximum aggregate of 1,000,000 shares (subject to adjustment as provided in
Paragraph 12(a) and 17) of Common Stock, subject to Paragraph 12, 17 and 22
below, as follows:
(i) Offering I shall commence on each March 1 and terminate on each
August 31.
(ii) Offering II shall commence on each September 1 and terminate on
each final day of February.
Participation in any one Offering under the Plan shall neither limit, nor
require, participation in any other Offering.
(b) The first Offering shall commence on September 1, 2002.
5. Participation.
2
All Employees will become participants in an Offering on the
applicable Offering Commencement Date. Payroll deductions, if any, for a
participant shall commence on the applicable Offering Commencement Date of the
Offering and shall end on the Offering Termination Date of such Offering, unless
sooner terminated pursuant to Paragraph 10.
6. Payroll Deductions.
(a) Participants may elect to have amounts withheld from their Base
Pay by completing an authorization for a payroll deduction ("Authorization") on
the form provided by the Company and filing it with the Company's Payroll
department. At the time a participant files his or her Authorization for a
payroll deduction, the participant shall elect to have deductions made from his
or her pay on each payday during the time he or she is a participant in an
Offering at the rate of 0, 1, 2, 3, 4, 5, 6, 7, 8, 9 or 10% of his or her
Annualized Base Pay. If a participant has not filed an Authorization for a
previous Offering or for the applicable Offering at least seven (7) days prior
to the applicable Offering Commencement Date, he or she shall be deemed to have
filed an Authorization electing to withhold 0% of his or her Annualized Base
Pay.
(b) All payroll deductions made for the participant shall be credited
to his or her account maintained by the Company under the Plan. A participant
may not make any separate cash payment into such account.
(c) Except as provided in Paragraph 8(b) or 10, a participant may
only make changes to the rate of deduction from his or her Annualized Base Pay,
on not more than one occasion during an Offering, by completing a new
Authorization on the form provided by the Company and filing it with the
Company's Director of Treasury Operations as provided herein. Such new
Authorization shall be effective upon the commencement of the first pay period
subsequent to its filing. A participant may change his or her Authorization only
once during any Offering.
7. Granting of Option.
(a) For each of the Offerings, a participating Employee shall be
deemed to have been granted an option (the "Option"), on the applicable Offering
Commencement Date, to purchase a maximum number of shares of Common Stock equal
to an amount determined as follows: 85% of the market value of a share of the
Company's Common Stock on the applicable Offering Commencement Date shall be
divided into an amount equal to the Authorization the Employee has filed with
the Company's payroll department. For all purposes of the Plan, the market value
of the Company's Common Stock shall be determined as provided in subparagraph
(b) below.
(b) The purchase price of a share of Common Stock purchased with
payroll deductions made during each Offering (the "Option Exercise Price") shall
be the lower of:
3
(i) 85% of the last sale price of the Common Stock on the Nasdaq
National Market (or on such other national securities exchange on which the
Common Stock is then traded) as reported in The Wall Street Journal on the
applicable Offering Commencement Date (or on the next regular business date on
which shares of Common Stock shall be traded if no shares of Common Stock shall
have been traded on such Offering Commencement Date); or
(ii) 85% of the last sale price of Common Stock on the Nasdaq
National Market (or on such other national securities exchange on which the
Common Stock is then traded) as reported in The Wall Street Journal on the
applicable Offering Termination Date (or on the next regular business date on
which shares of Common Stock shall be traded if no shares of Common Stock shall
have been traded on such Offering Termination Date).
8. Exercise of Options.
With respect to each Offering during the term of the Plan:
(a) Unless a participant gives written notice of withdrawal to the
Company as provided in Paragraphs 8(b) and 10, his or her Option will be deemed
to have been exercised automatically on the Offering Termination Date applicable
to such Offering, for the purchase of the number of full shares of Common Stock
which the accumulated payroll deductions (without interest) in his or her
account maintained by the Company under the Plan at that time will purchase at
the applicable Option Exercise Price (but not in excess of the number of shares
for which Options have been granted to the Employee pursuant to Paragraph 7(a)),
and any excess in his or her account at that time will be returned to him or
her, with interest as determined by the Committee prior to each Offering
Commencement Date, based on the assumption that such excess comprises funds most
recently deducted from the participant's pay; provided that any excess returned
on account of fractional shares will not be credited with any interest.
(b) By written notice to the Director of Treasury Operations of the
Company at any time prior to the Offering Termination Date applicable to any
such Offering, a participant may elect to withdraw all, but not less than all,
of the accumulated payroll deductions in his or her account at such time, with
interest as determined by the Committee prior to each Offering Commencement
Date.
(c) Fractional shares will not be issued under the Plan and any
accumulated payroll deductions which would have been used to purchase fractional
shares shall be returned to an employee without interest promptly following the
termination of an Offering.
9. Delivery.
As promptly as practicable after the Offering Termination Date of
each Offering, the Company will deliver to each participant, as appropriate, the
4
certificate or certificates representing the shares of Common Stock purchased
upon the exercise of such participant's Option.
10. Withdrawal.
(a) As indicated in Paragraph 8(b), a participant may withdraw
payroll deductions credited to his or her account with the Company under any
Offering at any time prior to the applicable Offering Termination Date by giving
written notice of withdrawal to the Director of Treasury Operations. All of the
participant's payroll deductions credited to his or her account will be paid to
the participant promptly after receipt of such notice of withdrawal and no
further payroll deductions will be made from his or her pay during such
Offering. The Company may, at its option, treat any attempt by an employee to
borrow on the security of accumulated payroll deductions as an election, under
Paragraph 8(b), to withdraw such deductions.
(b) A participant's withdrawal from any Offering will not have any
effect upon his or her eligibility to participate in any succeeding Offering or
in any similar Plan which may hereafter be adopted by the Company.
(c) Upon termination of the participant's employment for any reason,
including retirement but excluding death or disability, while in the employ of
the Company, the payroll deductions credited to his or her account will be
returned to the participant, with interest as determined by the Committee prior
to each Offering Commencement Date, or, in the case of his or her death
subsequent to the termination of employment, to the person or persons entitled
thereto under Paragraph 14.
(d) Upon termination of the participant's employment because of
disability or death, the participant or his or her beneficiary (as defined in
Paragraph 14) shall have the right to elect, by written notice given to the
Company's Director of Treasury Operations prior to the expiration of the period
of 30 days commencing with the date of the disability or death of the
participant, either
(i) to withdraw all of the payroll deductions credited to the
participant's account under the Plan; or
(ii) to exercise the participant's Option on the Offering Termination
Date next following the date of the participant's disability or death for the
purchase of the number of full shares of Common Stock which the accumulated
payroll deductions in the participant's account at the date of the participant's
disability or death will purchase at the applicable Option Exercise Price, and
any excess in such account will be returned to the participant or said
beneficiary.
If no such written notice of election is received by the Director of
Treasury Operations, the participant or beneficiary shall automatically be
deemed to have elected to withdraw the payroll deductions credited to the
participant's account at the date of the participant's disability or death and
5
the same will be paid promptly to the participant or said beneficiary with
interest as determined by the Committee prior to each Offering Commencement
Date.
11. Interest.
No interest will be paid or allowed on any money paid into the Plan
or credited to the account of any participant employee except under withdrawal
as provided under Paragraphs 8(b) and 10 or upon the return of payroll
deductions as provided under Paragraphs 8(a) and 12(a). In the event of the
return of excess payroll deductions under Paragraphs 8(a) and 12(a), interest
thereon, if any, shall be computed assuming that such excess comprises funds
most recently deducted from the participant's pay.
12. Stock.
(a) The maximum number of shares of Common Stock which shall be made
available for sale under the Plan shall be 1,000,000 shares, subject to
adjustment upon changes in capitalization of the Company as provided in
Paragraph 17. If the total number of shares for which Options are exercised in
accordance with Paragraph 8 exceeds 1,000,000, the Company shall make a pro rata
allocation of the shares available for delivery and distribution in as nearly a
uniform manner as shall be practicable and as it shall determine to be
equitable, and the balance of payroll deductions credited to the account of each
participant under the Plan shall be returned to him or her as promptly as
possible, with interest on such balance at the rate determined by the Committee
prior to each Offering Commencement Date, based on the assumption that such
excess comprises funds most recently deducted from the participant's pay.
(b) The participant will have no interest in Common Stock covered by
his or her Option until such Option has been exercised.
(c) Common Stock to be delivered to a participant under the Plan will
be issued in the name of the participant, or, if the participant so directs, by
written notice to the Company prior to the Offering Termination Date applicable
thereto, in the names of the participant and one such other person as may be
designated by the participant, as joint tenants with rights of survivorship, to
the extent permitted by applicable law.
13. Administration.
The Plan shall be administered by the committee appointed by the
Board of Directors of the Company to administer the Plan (the committee so
designated by the Board of Directors shall hereinafter be referred to as the
"Committee"). The officer of the Company charged with day-to-day administration
of the Plan shall, for matters involving the Plan, be an ex-officio member of
the Committee. The interpretation and construction of any provision of the Plan
and the adoption of rules and regulations for administering the Plan shall be
made by the Committee, subject, however, at all times to the final approval of
the Board of Directors of the Company. Such rules may include, without
limitation, restrictions on the frequency of changes in withholding rates.
Determinations made by the Committee and approved by the Board of Directors of
6
the Company with respect to any matter or provision contained in the Plan shall
be final, conclusive and binding upon the Company and upon all participants,
their heirs or legal representatives. Any rule or regulation adopted by the
Committee shall remain in full force and effect unless and until altered,
amended or repealed by the Committee or the Board of Directors of the Company.
14. Designation of Beneficiary.
A participant may file a written designation of a beneficiary who is
to receive any shares of Common Stock and/or cash in the event of the death of
the participant prior to the delivery of such shares or cash to the participant.
Such designation of beneficiary may be changed by the participant at any time by
written notice to the Company's payroll department. Within 30 days after the
participant's death, the beneficiary may, as provided in Paragraph 10(d), elect
to exercise the participant's Option when it becomes exercisable on the Offering
Termination Date of the then current Offering. Upon the death of a participant
and upon receipt by the Company of proof of identity and existence at the
participant's death, (of a beneficiary validly designated by the participant
under the Plan) and upon and notice of election of the validly designated
beneficiary to exercise the participant's Option, the Company shall deliver such
stock and/or cash to such beneficiary. In the event of the death of a
participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such participant's death, the Company shall
deliver such stock and/or cash to the executor or administrator of the estate of
the participant, or if no such executor or administrator has been appointed (to
the knowledge of the Company) the Company, in its discretion, may deliver such
stock and/or cash to the spouse or to any one or more dependents of the
participant as the Company may determine. No beneficiary shall prior to the
death of the participant by whom he or she has been designated acquire any
interest in the stock or cash credited to the participant's account maintained
by the Company under the Plan.
15. Transferability.
Neither payroll deductions credited to a participant's account nor
any rights with regard to the exercise of an Option or to receive stock under
the Plan may be assigned, transferred, pledged or otherwise disposed of in any
way by the participant otherwise than by will or the laws of descent and
distribution. Any such attempted assignment, transfer, pledge or other
disposition shall be without effect, except that the Company may treat such act
as an election to withdraw funds in accordance with Paragraph 8(b).
16. Use of Funds.
All payroll deductions received or held by the Company under this
Plan may be used by the Company for any corporate purpose and the Company shall
not be obligated to segregate such payroll deductions.
7
17. Effects of Changes of Common Stock.
In the event of any changes of outstanding shares of the Common Stock
by reason of stock dividends, subdivisions, combinations and exchanges of
shares, recapitalizations, mergers in which the Company is the surviving
corporation, consolidations, and the like, the aggregate number of and class of
shares available under the Plan and Option Exercise Price per share shall be
appropriately adjusted by the Board of Directors of the Company, whose
determination shall be conclusive. Any such adjustments may provide for the
elimination of any fractional shares which would otherwise become subject to any
Options.
18. Amendment or Termination.
(a) The Board of Directors of the Company may at any time, and from
time to time, modify, terminate or amend the Plan in any respect, except that if
at any time the approval of the stockholders of the Company is required as to
such modification or amendment under (i) Section 423 of the Code, or (ii) under
Rule 16b-3 of the Securities Exchange Act of 1934, as amended, or any successor
provisions ("Rule 16b-3"), or (iii) under any applicable listing requirements,
the Board of Directors may not effect such modification or amendment without
such approval.
(b) The termination or any modification or amendment of the Plan
shall not, without the consent of a participant, affect his or her rights under
an Option previously granted to him or her. With the consent of the participant
affected, the Board of Directors may amend outstanding Options in a manner not
inconsistent with the Plan. The Board of Directors shall have the right to amend
or modify the terms and provisions of the Plan and of any Options previously
granted under the Plan to the extent necessary to ensure the continued
qualification of the Plan under Section 423 of the Code and Rule 16b-3.
19. Notices.
All notices or other communications by a participant to the Company
under or in connection with the Plan shall be deemed to have been duly given
when received by the Company's Director of Treasury Operations.
20. Merger or Consolidation.
If the Company shall at any time merge into or consolidate with
another corporation and the Company is the surviving entity, the holder of each
Option then outstanding will thereafter be entitled to receive at the next
Offering Termination Date upon the automatic exercise of such Option under
Paragraph 8(a) (unless previously withdrawn pursuant to Paragraph 10) for each
share as to which such Option shall be exercised the securities or property
which a holder of one share of the Common Stock was entitled to upon and at the
time of such merger or consolidation, and the Board of Directors of the Company
shall take such steps in connection with such merger or consolidation as the
Board of Directors shall deem necessary to assure that the provisions of
8
Paragraph 17 shall thereafter be applicable, as nearly as reasonably
practicable, to such securities or property. In the event of a merger or
consolidation in which the Company is not the surviving entity, or of a sale of
all or substantially all of the assets of the Company, the Plan shall terminate,
and all payroll deductions credited to participants' accounts shall be returned
to them, with interest as determined by the Committee prior to each Offering
Commencement Date; provided, however, that the Board of Directors may, in the
event of such merger, consolidation or sale, accelerate the Offering Termination
Date of the Offering then in effect and permit participants to purchase shares
under the Plan at such accelerated Offering Termination Date.
21. Approval of Stockholders.
The Plan has been adopted by the Board of Directors of the Company.
The Plan shall be approved by the stockholders of the Company in accordance with
Section 423(b)(2) of the Code.
22. Registration and Qualification of the Plan Under Applicable
Securities Laws.
Notwithstanding anything to the contrary herein (including Paragraphs
4 and 8 hereof), no Option shall be exercised (and no Offering Period shall
terminate) until such time as the Company has qualified or registered the shares
which are subject to the Options under all applicable state and federal
securities laws to the extent required by such laws. In the event the shares
shall not have been so qualified and registered prior the date an offering is
scheduled to terminate, the Offering Termination Date shall be the date upon
which the registration of the shares and such other qualification shall have
become effective; provided, however, that for purposes of Paragraph 6 of the
Plan, payroll deductions shall cease on the date the Offering Period was
originally scheduled to terminate for the applicable Offering.
9
Exhibit 5.1
[Weil, Gotshal & Manges LLP letterhead]
August 30, 2002
Verint Systems Inc.
234 Crossways Park Drive
Woodbury, New York 11797
Ladies and Gentlemen:
We have acted as counsel to Verint Systems Inc. (the "Company") in
connection with the preparation and filing with the Securities and Exchange
Commission of the registration statement of the Company on Form S-8 under the
Securities Act of 1933, as amended (the "Registration Statement"), with respect
to 1,000,000 shares of common stock, par value $.001 per share, of the Company
(the "Shares") issuable upon the exercise of options to be granted pursuant to
the Verint Systems Inc. 2002 Employee Stock Purchase Plan (the "Plan").
Capitalized terms defined in the Registration Statement and used (but not
otherwise defined) herein are used herein as so defined.
In so acting, we have examined originals or copies (certified or
otherwise identified to our satisfaction) of the Registration Statement, the
Plan and such corporate records, agreements, documents and other instruments,
and such certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such inquiries of
such officers and representatives, as we have deemed relevant and necessary as a
basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to these opinions that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company.
August 30, 2002
Page 2
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that the Shares to be issued pursuant to the terms
of the Plan have been duly authorized and, when issued as contemplated by the
Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the use of this letter as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manages LLP
Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement on Form S-8 of Verint Systems Inc. of our report dated March 8, 2002, appearing in a 424(b) Prospectus of Verint Systems Inc. filed with the Securities and Exchange Commission on May 16, 2002. /s/ Deloitte & Touche LLP Jericho, New York August 27, 2002
Exhibit 23.2
KPMG
750 B Street
San Diego, CA 92101
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Loronix Information Systems, Inc.:
We consent to the use of our report included herein.
/s/ KPMG LLP
San Diego, California
August 29, 2002