As filed with the Securities and Exchange Commission on May 24, 2000
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------------
RETEK INC.
(Exact name of registrant as specified in its charter)
Delaware 510392671
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Midwest Plaza, 801 Nicollett Mall, 11th Floor
Minneapolis, MN 55402
(Address of principal executive offices, including zip code)
-----------------------------
HIGHTOUCH TECHNOLOGIES, INC. 1999 STOCK PURCHASE PLAN
(Full title of the plan)
John Buchanan
Chairman and Chief Executive Officer
Retek Inc.
Midwest Plaza, 801 Nicollet Mall, 11th Floor
Minneapolis, MN 55402
(Name and address of agent for service)
(612) 630-5700
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount
Title of Securities Amount to be Offering Price Aggregate of
to be Registered Registered Per Share (2) Offering Price (2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 38,283 $ 9.28 $ 355,266.24 $ 93.79
$0.01 per share 1,961,717 $18.00 $35,310,906.00 $9,322.08
--------- =========
Total 2,000,000 $9,415.87
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act"), the proposed maximum offering price per share
and the proposed maximum aggregate offering price of the 38,283 shares
subject to currently outstanding stock options under the plans are
based on the per share exercise price of the stock options.
(2) The proposed maximum offering price of the 1,961,717 shares registered
hereunder of $18 per share and the proposed maximum aggregate offering
price of $35,310,906.00 have been estimated solely for the purpose
of determining the registration fee pursuant to Rule 457(c) and 457(h)
under the Securities Act, on the basis of the average of the high and
low prices of the Common Stock per share reported on the Nasdaq
National Market on May 23, 2000.
<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registration Information and Employee Plan Annual Information.*
- --------
* Information required by Part 1 to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act, and the "Note" to Part 1 of
Form S-8.
2
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Retek Inc.,
a Delaware corporation (the "Registrant") with the Securities and Exchange
Commission (the "Commission") under File number 000-28121 are incorporated by
reference in this Registration Statement by reference and made a part hereof:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act of 1934,
as amended (the "Exchange Act"), since the end of the
fiscal year covered by the Annual Report on Form 10-K
referred to in clause (a) above, including the
Registrant's Quarterly Report on Form 10-Q for the
period ended on March 31, 2000;
(c) The description of the Common Stock contained in the
Registrant's Statement on Form 8-A under Section 12
of the Exchange Act (the "Form 8-A"), which Form 8-A
incorporates by reference the description of the
Common Stock set forth under the caption "Description
of Capital Stock" beginning on page 76 of the
Registrant's Registration Statement on Form S-1, as
amended (Registration No. 333-86841).
All other documents that the Registrant files pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
effective date of this Registration Statement, but prior to the filing of a
post-effective amendment to this Registration Statement indicating that all
securities offered hereby have been sold or deregistering all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such documents.
3
<PAGE>
Item 4. Description of Securities.
Not required.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the
"DGCL") empowers a Delaware corporation to indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or completed legal
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person is or was an officer or director of such
corporation or is or was serving at the request of such corporation as a
director, officer, employer or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation, and, in the case
of criminal proceedings, had no reasonable cause to believe his or her conduct
was illegal. A Delaware corporation may indemnify officers and directors against
expenses (including attorneys' fees) in connection with the defense or
settlement of an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him or
her against expenses which such officer or director actually and reasonably
incurred. The Certificate of Incorporation of the Registrant provides for
indemnification of the officers and directors of the Registrant to the full
extent permitted by applicable law.
In accordance with Delaware law, the Certificate of
Incorporation of the Registrant contains, and the Amended and Restated
Certificate of Incorporation of the Registrant will contain, a provision to
limit the personal liability of directors of the Registrant for violations of
their fiduciary duty. This provision eliminates each director's liability to the
Registrant or its stockholders for monetary damages except (i) for any breach of
the director's duty of loyalty to the Registrant or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions or (iv) for any transaction from which a director
derived an improper personal benefit. The effect of this provision is to
eliminate the personal liability of directors for
4
<PAGE>
monetary damages for actions involving a breach of their fiduciary duty of care,
including any such actions involving gross negligence.
Pursuant to the underwriting agreement between the Registrant
and the underwriters filed as an exhibit to the Registration Statement on Form
S-1, Registration No. 333-86841, the underwriters, a party thereto, have agreed
to indemnify each officer and director of the Registrant and each person, if
any, who controls the Registrant within the meaning of the Securities Act,
against certain liabilities, including liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
Exhibit
No. Description of Exhibit
- ------- ----------------------
4.1 Certificate of Incorporation (incorporated herein by reference
to the Registrant's Registration Statement on Form S-1,
Registration No. 333-86841).
4.2 By-Laws (incorporated herein by reference to the Registrant's
Registration Statement on Form S-1, Registration No.
333-86841).
4.3 HighTouch Technologies, Inc. 1999 Stock Option Plan.
5 Opinion of Shearman & Sterling as to the validity of the
Common Stock.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Shearman & Sterling (contained in Exhibit 5).
24 Power of Attorney (included as part of the signature pages to
this Registration Statement).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
5
<PAGE>
(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 this 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 this
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
and of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective Registration
Statement; and
(iii) To include any material information with respect to
the plans of distribution not previously disclosed in this
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that the undertakings set forth in paragraph 1(i) and (1)(ii)
above 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 Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liabilities 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 report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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.
6
<PAGE>
(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 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
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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, thereunto
duly authorized, in the City of Minneapolis, State of Minnesota on the 23rd day
of May 2000.
Retek Inc.
By: /s/ John Buchanan
-----------------------------------------
Name: John Buchanan
Title: Chairman, Chief Executive Officer
and Director
8
<PAGE>
KNOW ALL MEN BY THESE PRESENTS that each person whose
signature to this Registration Statement appears below hereby constitutes and
appoints each of John Buchanan, Gregory A. Effertz and Gordon Masson as such
person's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any and all amendments to
the Registration Statement, including post-effective amendments, and
registration statements filed pursuant to Rule 462 under the Securities Act, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, and does hereby grant unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that each said attorney-in-fact
and agent, or any substitute therefor, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 22nd day of May, 2000.
Signature Capacity
--------- --------
/s/ John Buchanan Chairman; Chief Executive Officer; Director
- ----------------------------
John Buchanan
/s/ Ward Carey Director
- ----------------------------
Ward Carey
/s/ Charles H. Gaylord Director
- ----------------------------
Charles H. Gaylord
/s/ Alex Way Hart Director
- ----------------------------
Alex Way Hart
Director
- ----------------------------
N. Ross Buckenham
/s/ Glen A. Terbeek Director
- ----------------------------
Glen A. Terbeek
Director
- ----------------------------
Stephen E. Watson
/s/ Greg Effertz Vice President, Finance and Administration,
- ---------------------------- Chief Financial Officer, Treasurer
Greg Effertz and Secretary
/s/ James Murdy Controller
- ----------------------------
James Murdy
9
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description of Exhibit
- ------- ----------------------
4.1 Certificate of Incorporation (incorporated herein by reference
to the Registrant's Registration Statement on Form S-1,
Registration No. 333-86841).
4.2 By-Laws (incorporated herein by reference to the Registrant's
Registration Statement on Form S-1, Registration No.
333-86841).
4.3 HighTouch Technologies, Inc. 1999 Stock Option Plan.
5 Opinion of Shearman & Sterling as to the validity of the
Common Stock.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Shearman & Sterling (contained in Exhibit 5).
24 Power of Attorney (included as part of the signature pages to
this Registration Statement).
10
HIGHTOUCH TECHNOLOGIES, INC.
----------------------------
1999 STOCK OPTION PLAN
----------------------
1. Purpose.
The purpose of this plan (the "Plan") is to secure for HighTouch
Technologies, Inc. (the "Company") and its shareholders the benefits arising
from capital stock ownership by employees, officers and directors of, and
consultants or advisors to, the Company and its parent and subsidiary
corporations who are expected to contribute to the Company's future growth and
success. Except where the context otherwise requires, the term "Company" shall
include the parent and all present and future subsidiaries of the Company as
defined in Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as
amended or replaced from time to time (the "Code"). Those provisions of the Plan
which make express reference to Section 422 shall apply only to Incentive Stock
Options (as that term is defined in the Plan).
2. Type of Options and Administration.
(a) Types of Options. Options granted pursuant to the Plan
shall be authorized by action of the Board of Directors of the Company (or a
Committee designated by the Board of Directors) and may be either incentive
stock options ("Incentive Stock Options") meeting the requirements of Section
422 of the Code or non-statutory options which are not intended to meet the
requirements of Section 422 of the Code.
(b) Administration. The Plan will be administered by the
Board of Directors of the Company, whose construction and interpretation of the
terms and provisions of the Plan shall be final and conclusive. The Board of
Directors may in its sole discretion grant options to purchase shares of the
Company's Common Stock ("Common Stock") and issue shares upon exercise of such
options as provided in the Plan. The Board shall have authority, subject to the
express provisions of the Plan, to construe the respective option agreements and
the Plan, to prescribe, amend and rescind rules and regulations relating to the
Plan, to determine the terms and provisions of the respective option agreements,
which need not be identical, and to make all other determinations which are in
the judgment of the Board of Directors, necessary or desirable for the
administration of the Plan. The Board of Directors may correct any defect,
supply any omission or reconcile any inconsistency in the Plan or in any option
agreement in the manner and to the extent it shall deem expedient to carry the
Plan into effect and it shall be the sole and final judge of such expediency. No
director or person acting pursuant to authority delegated by the Board of
Directors shall be liable for any action or determination under the Plan made in
good faith. The Board of Directors may, to the full extent permitted by or
consistent with applicable laws or regulations (including, without limitation,
applicable state law, Section 162(m) of the Code or any regulations thereunder,
or any successor section of the Code or regulations thereunder ("Section
162(m)"), and Rule 16b-3 promulgated under the Securities Exchange Act of 1934
(the "Exchange Act"), or any successor rule ("Rule 16b-3)"), delegate any or all
of its powers under the Plan to a committee (the "Committee") appointed by the
Board of Directors, and if the Committee is so appointed all references to the
Board of Directors in the Plan shall mean and relate to such Committee. Unless
all members of the Board of Directors are "outside
1
<PAGE>
directors" within the meaning of Section 162(m) of the Code, as such term is
interpreted from time to time, then if the limitations on the tax deductibility
of certain compensation provided by Section 162(m) are applicable to Options
granted under the Plan, the Board shall appoint such Committee of two or more
directors, all of whom are outside directors, and shall delegate to such
Committee all of its powers under the Plan; provided, that any failure of any
director or Committee member to satisfy the definition of outside director shall
not invalidate any action taken by the Board or Committee with respect to any
participant in the Plan, whether or not such person is a "covered employee"
within the meaning of Section 162(m) of the Code, as such term is interpreted
from time to time.
(c) Applicability of Rule 16b-3 . Those provisions of the Plan
which make express reference to Rule 16b-3 shall apply only to such persons as
are required to file reports under Section 16(a) of the Exchange Act (a
"Reporting Person").
3. Eligibility.
(a) General. Options may be granted to persons who are, at
the time of grant, employees, officers or directors of, or consultants or
advisors to, the Company; provided, that the class of employees to whom
Incentive Stock Options may be granted shall be limited to all employees of the
Company. A person who has been granted an option may, if he or she is otherwise
eligible, be granted additional options if the Board of Directors shall so
determine.
(b) Grant of Options to Directors and Officers. From and
after the registration of the Common Stock of the Company under the Exchange
Act, the selection of a director or an officer (as the terms "director" and
"officer" are defined for purposes of Rule 16b-3) as a recipient of an option,
the timing of the option grant, the exercise price of the option and the number
of shares subject to the option shall be determined either (i) by the Board of
Directors, or (ii) by two or more directors having full authority to act in the
matter, each of whom shall be a "non-employee director." For the purposes of the
Plan, a director shall be deemed to be a "non-employee director" only if such
person qualifies as a "non-employee director" within the meaning of Rule 16b-3,
as such term is interpreted from time to time.
4. Stock Subject to Plan.
Subject to adjustment as provided in Section 15 below, the maximum
number of shares of Common Stock of the Company which may be issued and sold
under the Plan is Three Hundred Forty Five Thousand Three Hundred Forty Five
(345,345). If an option granted under the Plan shall expire or terminate for any
reason without having been exercised in full, the unpurchased shares subject to
such option shall again be available for subsequent option grants under the
Plan. If shares issued upon exercise of an option under the Plan are tendered to
the Company in payment of the exercise price of an option granted under the
Plan, such tendered shares shall again be available for subsequent option grants
under the Plan; provided, that in no event shall such shares be made available
for issuance to Reporting Persons or pursuant to exercise of Incentive Stock
Options.
2
<PAGE>
5. Forms of Option Agreements.
As a condition to the grant of an option under the Plan, each recipient
of an option shall execute an option agreement in such form not inconsistent
with the Plan as may be approved by the Board of Directors. Such option
agreements may differ among recipients.
6. Purchase Price.
(a) General. The purchase price per share of stock
deliverable upon the exercise of an option shall be determined by the Board of
Directors, provided, however, that in the case of an Incentive Stock Option, or
an option intended to qualify as performance-based compensation within the
meaning of Section 162(m), the exercise price shall not be less than 100% of the
fair market value of such stock, as determined by the Board of Directors, at the
time of grant of such option, or less than 110% of such fair market value in the
case of options described in Section 11(b).
(b) Payment of Purchase Price. Options granted under the Plan
may provide for the payment of the exercise price by delivery of cash or a check
to the order of the Company in an amount equal to the exercise price of such
options, or, to the extent provided in the applicable option agreement, (i) by
delivery to the Company of shares of Common Stock of the Company owned by the
optionee having a fair market value equal in amount to the exercise price of the
options being exercised (including shares which the optionee would be entitled
to receive upon exercise of the option), (ii) by any other means (including,
without limitation, by delivery of a promissory note of the optionee payable on
such terms as are specified by the Board of Directors) which the Board of
Directors determines are consistent with the purpose of the Plan and with
applicable laws and regulations (including, without limitation, the provisions
of Rule 16b-3 and Regulation T promulgated by the Federal Reserve Board and
Section 162(m) to the extent an option is intended to qualify as performance
based compensation within the meaning of that Section) or (iii) by any
combination of such methods of payment. The fair market value of any shares of
the Company's Common Stock or other non-cash consideration which may be
delivered upon exercise of an option shall be determined by the Board of
Directors.
7. Option Period.
Each option and all rights thereunder shall expire on such date as
shall be set forth in the applicable option agreement, except that, in the case
of an Incentive Stock Option, such date shall not be later than ten years after
the date on which the option is granted (except as provided in Section 11(b))
and, in all cases, options shall be subject to earlier termination as provided
in the Plan.
8. Exercise of Options.
Each option granted under the Plan shall be exercisable either in full
or in installments at such time or times and during such period as shall be set
forth in the agreement evidencing such option, subject to the provisions of the
Plan.
3
<PAGE>
9. Nontransferability of Options.
Incentive Stock Options, and all options granted to Reporting Persons,
shall not be assignable or transferable by the person to whom they are granted,
either voluntarily or by operation of law, except by will or the laws of descent
and distribution, and, during the life of the optionee, shall be exercisable
only by the optionee; provided, however, that non-statutory options may be
transferred pursuant to a qualified domestic relations order (as defined in Rule
16b-3).
10. Effect of Termination of Employment or Other Relationship.
Except as provided in Section 11(d) with respect to Incentive Stock
Options, and subject to the provisions of the Plan, the Board of Directors shall
determine the period of time during which an optionee may exercise an option
following (i) the termination of the optionee's employment or other relationship
with the Company or (ii) the death or disability of the optionee. Such periods
shall be set forth in the agreement evidencing such option.
11. Incentive Stock Options.
Options granted under the Plan which are intended to be Incentive Stock
Options shall be subject to the following additional terms and conditions:
(a) Express Designation. All Incentive Stock Options granted
under the Plan shall, at the time of grant, be specifically designated as such
in the option agreement covering such Incentive Stock Options.
(b) 10% Shareholder. If any employee to whom an Incentive
Stock Option is to be granted under the Plan is, at the time of the grant of
such option, the owner of stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company (after taking into account
the attribution of stock ownership rules of Section 424(d) of the Code), then
the following special provisions shall be applicable to the Incentive Stock
Option granted to such individual:
(i) The purchase price per share of the Common Stock subject
to such Incentive Stock Option shall not be less than 110% of the fair
market value of one share of Common Stock at the time of grant; and
(ii) The option exercise period shall not exceed ten years
from the date of grant.
(c) Dollar Limitations. For so long as the Code shall so
provide, options granted to any employee under the Plan (and any other incentive
stock option plans of the Company) which are intended to constitute Incentive
Stock Options shall not constitute Incentive Stock Options to the extent that
such options, in the aggregate, become exercisable for the first time in any one
calendar year for shares of Common Stock with an aggregate fair market value
(determined as of the respective date or dates of grant) of more than $100,000.
4
<PAGE>
(d) Termination of Employment, Death or Disability. No
Incentive Stock Option may be exercised unless, at the time of such exercise,
the optionee is, and has been continuously since the date of grant of his or her
option, employed by the Company, except that:
(i) an Incentive Stock Option may be exercised within the
period of three months after the date the optionee ceases to be an
employee of the Company (or within such lesser period as may be
specified in the applicable option agreement), provided, that the
agreement with respect to such option may designate a longer exercise
period and that the exercise after such three-month period shall be
treated as the exercise of a non-statutory option under the Plan;
(ii) if the optionee dies while in the employ of the Company,
or within three months after the optionee ceases to be such an
employee, the Incentive Stock Option may be exercised by the person to
whom it is transferred by will or the laws of descent and distribution
within the period of one year after the date of death (or within such
lesser period as may be specified in the applicable option agreement);
and
(iii) if the optionee becomes disabled (within the meaning of
Section 22(e)(3) of the Code or any successor provision thereto) while
in the employ of the Company, the Incentive Stock Option may be
exercised within the period of one year after the date the optionee
ceases to be such an employee because of such disability (or within
such lesser period as may be specified in the applicable option
agreement).
For all purposes of the Plan and any option granted hereunder, "employment"
shall be defined in accordance with the provisions of Section 1.421-7(h) of the
Income Tax Regulations (or any successor regulations). Notwithstanding the
foregoing provisions, no Incentive Stock Option may be exercised after its
expiration date.
12. Additional Provisions.
(a) Additional Option Provisions. The Board of Directors may, in its
sole discretion, include additional provisions in option agreements covering
options granted under the Plan, including without limitation restrictions on
transfer, repurchase rights, commitments to pay cash bonuses, to make, arrange
for or guaranty loans or to transfer other property to optionees upon exercise
of options, or such other provisions as shall be determined by the Board of
Directors; provided, that such additional provisions shall not be inconsistent
with any other term or condition of the Plan and such additional provisions
shall not cause any Incentive Stock Option granted under the Plan to fail to
qualify as an Incentive Stock Option within the meaning of Section 422 of the
Code.
(b) Acceleration, Extension, Etc. The Board of Directors may, in its
sole discretion, (i) accelerate the date or dates on which all or any particular
option or options granted under the Plan may be exercised or (ii) extend the
dates during which all, or any particular option or options granted under the
Plan may be exercised; provided, however, that no such extension shall be
permitted if it would cause the Plan to fail to comply with Section 422 of the
Code or
5
<PAGE>
with Rule 16b-3 or cause any option granted under the Plan to fail to
qualify as performance-based compensation within the meaning of Section 162(m).
13. General Restrictions.
(a) Investment Representation . The Company may require any
person to whom an option is granted, as a condition of exercising such option,
to give written assurances in substance and form satisfactory to the Company to
the effect that such person is acquiring the Common Stock subject to the option
for his or her own account for investment and not with any present intention of
selling or otherwise distributing the same, and to such other effects as the
Company deems necessary or appropriate in order to comply with federal and
applicable state securities laws, or with covenants or representations made by
the Company in connection with any public offering of its Common Stock.
(b) Compliance with Securities Laws . Each option shall be
subject to the requirement that if, at any time, counsel to the Company shall
determine that the listing, registration or qualification of the shares subject
to such option upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any other condition
is necessary as a condition of, or in connection with, the issuance or purchase
of shares thereunder, such option may not be exercised, in whole or in part,
unless such listing, registration, qualification, consent or approval, or
satisfaction of such condition shall have been effected or obtained on
conditions acceptable to the Board of Directors. Nothing herein shall be deemed
to require the Company to apply for or to obtain such listing, registration or
qualification, or to satisfy such condition.
14. Rights as a Shareholder.
The holder of an option shall have no rights as a shareholder
with respect to any shares covered by the option (including, without limitation,
any rights to receive dividends or non-cash distributions with respect to such
shares) until the date of issue of a stock certificate to him or her for such
shares. No adjustment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
15. Adjustment Provisions for Recapitalizations and Related
Transactions.
(a) General. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction, (i) the outstanding shares of
Common Stock are increased, decreased or exchanged for a different number or
kind of shares or other securities of the Company, or (ii) additional shares or
new or different shares or other securities of the Company or other non-cash
assets are distributed with respect to such shares of Common Stock or other
securities, an appropriate and proportionate adjustment may be made in (x) the
maximum number and kind of shares reserved for issuance under the Plan, (y) the
number and kind of shares or other securities subject to any then outstanding
options under the Plan, and (z) the price for each share subject to any then
outstanding options under the
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Plan, without changing the aggregate purchase price as to which such options
remain exercisable. Notwithstanding the foregoing, no adjustment shall be made
pursuant to this Section 15 if such adjustment would cause the Plan to fail to
comply with Section 422 of the Code or with Rule 16b-3.
(b) Board Authority to Make Adjustments. Any adjustments under
this Section 15 will be made by the Board of Directors, whose determination as
to what adjustments, if any, will be made and the extent thereof will be final,
binding and conclusive. No fractional shares will be issued under the Plan on
account of any such adjustments.
16. Merger, Consolidation, Asset Sale, Liquidation, etc.
(a) General. In the event of a consolidation or merger or
sale of all or substantially all of the assets of the Company in which
outstanding shares of Common Stock are exchanged for securities, cash or other
property of any other corporation or business entity or in the event of a
liquidation of the Company, the Board of Directors of the Company, or the board
of directors of any corporation assuming the obligations of the Company, may, in
its discretion, take any one or more of the following actions, as to outstanding
options: (i) provide that such options shall be assumed, or equivalent options
shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof), provided that any such options substituted for Incentive
Stock Options shall meet the requirements of Section 424(a) of the Code, (ii)
upon written notice to the optionees, provide that all unexercised options will
terminate immediately prior to the consummation of such transaction unless
exercised by the optionee within a specified period following the date of such
notice, (iii) in the event of a merger under the terms of which holders of the
Common Stock of the Company will receive upon consummation thereof a cash
payment for each share surrendered in the merger (the "Merger Price"), make or
provide for a cash payment to the optionees equal to the difference between (A)
the Merger Price times the number of shares of Common Stock subject to such
outstanding options (to the extent then exercisable at prices not in excess of
the Merger Price) and (B) the aggregate exercise price of all such outstanding
options in exchange for the termination of such options, and (iv) provide that
all or any outstanding options shall become exercisable in full immediately
prior to such event, provided, however, the Board of Directors may not take any
action which would cause any option granted under the plan to fail to qualify as
performance-based compensation within the meaning of Section 162(m).
(b) Substitute Options. The Company may grant options under
the Plan in substitution for options held by employees of another corporation
who become employees of the Company, or a subsidiary of the Company, as the
result of a merger or consolidation of the employing corporation with the
Company or a subsidiary of the Company, or as a result of the acquisition by the
Company, or one of its subsidiaries, of property or stock of the employing
corporation. The Company may direct that substitute options be granted on such
terms and conditions as the Board of Directors considers appropriate in the
circumstances.
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17. No Special Employment Rights.
Nothing contained in the Plan or in any option shall confer upon any
optionee any right with respect to the continuation of his or her employment by
the Company or interfere in any way with the right of the Company at any time to
terminate such employment or to increase or decrease the compensation of the
optionee.
18. Other Employee Benefits.
Except as to plans which by their terms include such amounts as
compensation, the amount of any compensation deemed to be received by an
employee as a result of the exercise of an option or the sale of shares received
upon such exercise will not constitute compensation with respect to which any
other employee benefits of such employee are determined, including, without
limitation, benefits under any bonus, pension, profit-sharing, life insurance or
salary continuation plan, except as otherwise specifically determined by the
Board of Directors.
19. Amendment of the Plan.
The Board of Directors may at any time, and from time to time, modify
or amend the Plan in any respect, except that if at any time the approval of the
shareholders of the Company is required under Section 422 of the Code or any
successor provision with respect to Incentive Stock Options, or under Rule
16b-3, or is required to ensure that any compensation resulting from any option
under the Plan is deductible by the Company for federal income tax purposes
under Section 162(m) the Board of Directors may not effect such modification or
amendment without such approval.
The termination or any modification or amendment of the Plan shall not,
without the consent of an optionee, affect his or her rights under an option
previously granted to him or her. With the consent of the optionee affected, the
Board of Directors may amend outstanding option agreements in a manner not
inconsistent with the Plan. The Board of Directors shall have the right to amend
or modify (i) the terms and provisions of the Plan and of any outstanding
Incentive Stock Options granted under the Plan to the extent necessary to
qualify any or all such options for such favorable federal income tax treatment
(including deferral of taxation upon exercise) as may be afforded incentive
stock options under Section 422 of the Code and (ii) the terms and provisions of
the Plan and of any outstanding option to the extent necessary to ensure the
qualification of the Plan under Rule 16b-3 or to ensure that any compensation
resulting from any option under the Plan is deductible by the Company for
federal income tax purposes under Section 162(m).
20. Withholding.
(a) The Company shall have the right to deduct from payments
of any kind otherwise due to the optionee any federal, state or local taxes of
any kind required by law to be withheld with respect to any shares issued upon
exercise of options under the Plan. Subject to the prior approval of the
Company, which may be withheld by the Company in its sole discretion, the
optionee may elect to satisfy such obligations, in whole or in part, (i) by
causing
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the Company to withhold shares of Common Stock otherwise issuable
pursuant to the exercise of an option or (ii) by delivering to the Company
shares of Common Stock already owned by the optionee. The shares so delivered or
withheld shall have a fair market value equal to such withholding obligation.
The fair market value of the shares used to satisfy such withholding obligation
shall be determined by the Company as of the date that the amount of tax to be
withheld is to be determined. An optionee who has made an election pursuant to
this Section 20(a) may only satisfy his or her withholding obligation with
shares of Common Stock which are not subject to any repurchase, forfeiture,
unfulfilled vesting or other similar requirements.
(b) Notwithstanding the foregoing, in the case of a Reporting Person,
no election to use shares for the payment of withholding taxes shall be
effective unless made in compliance with any applicable requirements of Rule
16b-3.
21. Cancellation and New Grant of Options, Etc.
The Board of Directors shall have the authority to effect, at any time
and from time to time, with the consent of the affected optionees, (i) the
cancellation of any or all outstanding options under the Plan and the grant in
substitution therefor of new options under the Plan covering the same or
different numbers of shares of Common Stock and having an option exercise price
per share which may be lower or higher than the exercise price per share of the
canceled options or (ii) the amendment of the terms of any and all outstanding
options under the Plan to provide an option exercise price per share which is
higher or lower than the then-current exercise price per share of such
outstanding options.
22. Effective Date and Duration of the Plan.
(a) Effective Date. The Plan shall become effective when
adopted by the Board of Directors, but no Incentive Stock Option granted under
the Plan or nonstatutory option granted under the Plan to an officer shall
become exercisable unless and until the Plan shall have been approved by the
Company's shareholders. If such shareholder approval is not obtained within
twelve months after the date of the Board's adoption of the Plan, no options
previously granted under the Plan shall be deemed to be Incentive Stock Options,
options previously granted to officers shall not vest and shall terminate and no
Incentive Stock Options shall be granted thereafter nor shall any options be
granted thereafter to officers. Amendments to the Plan not requiring shareholder
approval shall become effective when adopted by the Board of Directors;
amendments requiring shareholder approval (as provided in Section 19) shall
become effective when adopted by the Board of Directors, but no Incentive Stock
Option granted after the date of such amendment and no nonstatutory option
granted to any officer after the date of such amendment shall become exercisable
(to the extent that (i) such amendment to the Plan was required to enable the
Company to grant such Incentive Stock Option to a particular optionee or (ii)
shareholder approval of such amendment to the Plan was required to ensure the
deductibility by the Company of any compensation resulting from any option under
Section 162(m)) unless and until such amendment shall have been approved by the
Company's shareholders. If such shareholder approval is not obtained within
twelve months of the Board's adoption of such amendment, (i) any Incentive Stock
Options granted on or after the date of such amendment shall terminate to the
extent that such amendment to the Plan was required to enable the Company to
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grant such option to a particular optionee and (ii) any option granted to any
officer on or after the date of such amendment shall terminate to the extent
that shareholder approval of such amendment was required to ensure the
deductibility by the Company of any compensation resulting from any option under
Section 162(m). Subject to this limitation, options may be granted under the
Plan at any time after the effective date and before the date fixed for
termination of the Plan.
(b) Termination. Unless sooner terminated in accordance with
Section 16, the Plan shall terminate, with respect to Incentive Stock Options,
upon the earlier of (i) the close of business on the day next preceding the
tenth anniversary of the date of its adoption by the Board of Directors, or (ii)
the date on which all shares available for issuance under the Plan shall have
been issued pursuant to the exercise or cancellation of options granted under
the Plan. Unless sooner terminated in accordance with Section 16, the Plan shall
terminate with respect to option which are not Incentive Stock Options on the
date specified in (ii) above. If the date of termination is determined under (i)
above, then options outstanding on such date shall continue to have force and
effect in accordance with the provisions of the instruments evidencing such
options.
Adopted by the Board of Directors on August 1, 1999.
10
May 23, 2000
Retek, Inc.
Midwest Plaza
801 Nicollet Mall, 11th Floor
Minneapolis, MN 55402
Ladies and Gentlemen:
We have acted as counsel for Retek, Inc., a Delaware corporation (the
"Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") of the Company filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to 2,000,000 shares (the "Shares") of common stock, par value $.01
per share, of the Company (the "Common Stock"), to be issued from time to time
pursuant to the HighTouch Technologies, Inc. 1999 Stock Option Plan (the
"Plan").
In so acting, we have examined the Registration Statement and we have
also examined and relied as to factual matters upon the representations and
warranties contained in originals, or copies certified or otherwise identified
to our satisfaction, of such documents, records, certificates and other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents, certificates
and instruments submitted to us as originals and the conformity with originals
of all documents submitted to us as copies.
The opinion expressed below is limited to the General Corporation Law
of Delaware, and we do not express any opinion herein concerning any other law.
Based on the foregoing and having regard for such legal considerations
as we have deemed relevant, we are of the opinion that the Shares have been duly
authorized by the Company and, when (a) issued and delivered by the Company in
accordance with the terms of the Plan and (b) paid for in full in accordance
with the terms of the Plan, the Shares will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Shearman & Sterling
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 related to the HighTouch Technologies, Inc. 1999 Stock
Option Plan of our report dated January 25, 2000 relating to the financial
statements and financial statement schedule of Retek Inc., which appears in
Retek Inc.'s Annual Report on Form 10-K for the year ended December 31, 1999.
Minneapolis, Minnesota
May 19, 2000
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 related to the HighTouch Technologies, Inc. 1999 Stock
Option Plan of our report dated September 9, 1999 relating to the financial
statements of Retek Logistics, Inc., which appears in Retek Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1999.
Minneapolis, Minnesota
May 19, 2000
