EXHIBIT D
FORM OF CT
TAX OPINION REPRESENTATION LETTER
, 1997
Hale and Dorr LLP
60 State Street
Boston, MA 02109
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Ladies and Gentlemen:
On behalf of Comverse Technology, Inc. ("CT") and in connection
with the opinions to be delivered by your firms pursuant to Sections
6.02(c) and 6.03(c) of the Agreement and Plan of Merger (the "Merger
Agreement") dated as of August 20, 1997, between CT and Boston Technology,
Inc. ("BT"),[1] the undersigned hereby certifies that, to the extent the
facts relate to CT to his knowledge and after due diligence, and to the
extent otherwise without knowledge to the contrary, the following facts are
now true and will continue to be true as of the Effective Time:
1. The consideration received by each BT stockholder pursuant to
the Merger Agreement is the result of arm's-length negotiations
between the parties to the Merger Agreement.
2. CT has no plan or intention to reacquire any of the CT stock
issued in the Merger.
3. CT has no plan or intention to sell or otherwise dispose of
any of the assets of BT acquired by CT in the Merger, except for
dispositions made in the ordinary course of business; provided,
however, that notwithstanding the foregoing CT may transfer assets of
BT acquired by CT in the Merger in a manner that is consistent with
Section 368(a)(2)(C) of the Code.
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[1] For purposes of this certificate, capitalized terms used and not
otherwise defined herein shall have the meaning ascribed thereto in the
Merger Agreement.
4. There is no intercorporate indebtedness existing between CT
and BT that was issued, acquired, or will be settled at a discount.
5. Neither CT nor any subsidiary of CT owns, or has owned during
the past five years, any shares of BT; provided that for purposes of
this representation shares held by any pension fund that is under
independent management are not treated as being owned by CT or any of
its subsidiaries.
6. Following the Merger, CT will continue the historic business
of BT or use a significant portion of the historic business assets of
BT in a business.
7. CT is not an investment company as defined in section
368(a)(2)(F)(iii) and (iv) of the Internal Revenue Code.
8. The payment of cash in lieu of fractional shares of CT stock
is solely for the purpose of avoiding the expense and inconvenience to
CT of issuing fractional shares and does not represent separately
bargained for consideration. The total cash consideration that will be
paid in the Merger to BT stockholders instead of issuing fractional
shares of CT stock will not exceed one percent of the total
consideration that will be issued in the Merger to BT stockholders in
exchange for their shares of BT stock. The fractional share interests
of each BT stockholder will be aggregated, and no BT stockholder will
receive cash in an amount equal to or greater than the value of one
full share of CT stock.
9. Subject to Section 5.09 of the Merger Agreement, CT, BT and
the shareholders of BT will pay its expenses, if any, incurred in
connection with the Merger.
10. None of the compensation received by any
stockholder-employees of BT will be separate consideration for, or
allocable to, any of their shares of BT stock; none of the shares of
CT stock received by any stockholder-employees will be separate
consideration for, or allocable to, any employment agreement; and the
compensation paid to any stockholder-employees will be for services
actually rendered and will be commensurate with amounts paid to third
parties bargaining at arm's length for similar services.
11. The facts relating to the Merger of BT with and into CT
pursuant to the Merger Agreement, as described in the Merger
Agreement, the documents described in Section 5.01 of the Merger
Agreement and the joint proxy statement/prospectus prepared by CT and
BT, are, insofar as such facts pertain to CT, true, correct and
complete in all material respects.
12. CT will not take any position on any Federal, state or local
income or franchise tax return, or take any other tax reporting
position, that is inconsistent with the treatment of the Merger as a
reorganization within the meaning of Sections 368(a) of the Code,
unless otherwise required by a "determination" (as defined in Section
1313(a)(1) of the Code) or by applicable state or local income or
franchise tax law.
13. The Merger Agreement and the documents described in Sections
5.01 and 8.06 of the Merger Agreement represent the entire
understanding of BT and CT with respect to the Merger.
14. CT is not, and at the Effective Time will not be, under the
jurisdiction of a court in a Title 11 or similar case within the
meaning of Section 368(a)(3)(A).
15. Except with respect to payments of cash to BT shareholders
perfecting dissenters' rights or in lieu of fractional shares of CT
stock, one hundred percent (100%) of the BT stock outstanding
immediately prior to the Merger will be exchanged solely for CT stock.
Thus, except as set forth in the preceding sentence, CT intends that
no consideration be paid or received (directly or indirectly, actually
or constructively) for BT stock other than CT stock.
16. The total fair market value of all consideration other than
CT stock received by BT shareholders in the Merger (including, without
limitation, cash paid to BT shareholders perfecting dissenters' rights
or in lieu of fractional shares of CT stock) will be less than fifty
percent (50%) of the aggregate fair market value of the BT stock
outstanding immediately prior to the Merger.
I have read the drafts of your opinion letters attached to this
letter and understand that Cravath, Swaine & Moore, as counsel for CT, and
Hale and Dorr, as counsel for BT, will rely on this certificate in
rendering their
respective opinions concerning certain of the Federal income tax
consequences of the Merger and hereby commit to inform them if, for any
reason, any of the foregoing representations ceases to be true prior to the
Effective Time. I understand that your opinions will not address any tax
consequences of the Merger or any action taken in connection therewith
except as expressly set forth in such opinions.
COMVERSE TECHNOLOGY, INC.,
by
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Name:
Title: