<PAGE> 1
As filed with the Securities and Exchange Commission on September 30, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MICRO FOCUS GROUP PLC
(Exact Name of Registrant as Specified in Its Charter)
England and Wales Not applicable
State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
The Lawn, 22-30 Old Bath Road
Berkshire RG14 1QN
Newbury, England
(Address of Principal Executive Offices)
Options Issued Under the
Intersolv 1982 Stock Option Plan,
Intersolv 1992 Stock Option Plan,
Intersolv 1997 Employee Option Plan,
Q&E Stock Option Plan, and
TechGnosis Stock Option Plan
Assumed by the Registrant
Warrants Issued by Intersolv Inc.
to Certain Intersolv Employees
Assumed by the Registrant
1998 Micro Focus Share Option Plan
(Full Title of the Plans)
Richard Van Hoesen
Senior Vice President, Chief Financial Officer and Secretary
Micro Focus Group plc
c/o Micro Focus Incorporated
701 East Middlefield Road
Mountain View, California 94043
(650) 938-3700
(Name, Address and Telephone Number of Agent For Service)
Copies of Communications to:
Fritz K. Koehler, Esq.
Senior Counsel
Micro Focus Group plc
c/o Micro Focus Incorporated
701 East Middlefield Road
Mountain View, California 94043
(650) 938-3700
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CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- ------------------------------------------ ---------------- --------------------- --------------------- -----------------
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Registered(1) to be Offering Price Per Aggregate Offering Registration Fee
Registered Share Price
- ------------------------------------------ ---------------- --------------------- --------------------- -----------------
Ordinary Shares, GPB 0.02 par value,
represented by American Depositary Shares 13,702,061(2) $4.40(3) $60,289,068.40 $17,785.28
- ------------------------------------------ ---------------- --------------------- --------------------- -----------------
Ordinary Shares, GPB 0.02 par value,
represented by American Depositary Shares 12,450,710(4) $4.105(5) $51,110,164.55 $15,077.50
- ------------------------------------------ ---------------- --------------------- --------------------- -----------------
(1) A separate registration statement on Form F-6 (File No. 33-34422)filed with the Securities and Exchange Commission
on April 18, 1990, as amended pursuant to post-effective amendment number 1 thereto dated March 25, 1998 has been
declared effective with respect to the American Depositary Shares represented by American Depositary Receipts
issuable on a basis of one American Depositary Share for each five Ordinary Shares registered hereby upon deposit
of such Ordinary Shares.
(2) Shares available for issuance and not yet subject to outstanding options as of September 24, 1998 under the 1998
Micro Focus Share Option Plan.
(3) Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(h) and 457(c)
under the Securities Act of 1933 and based upon the average of the high and low prices of Ordinary Shares reported
on the London Stock Exchange on September 23, 1998. Converted to U.S. Dollars from G.B. Pounds on the basis of $1.68
U.S. Dollars per G.B. Pound.
(4) Shares subject to outstanding ptions as of September 23, 1998 under the Intersolv 1982 Stock Option Plan, Intersolv
1992 Stock Option Plan, Intersolv 1997 Employee Option Plan, Q&E Stock Option Plan and TechGnosis Stock Option
Plan and shares subject to outstanding warrants as of September 23, 1998.
(5) Weighted average per share exercise price for such outstanding options pursuant to Rule 457(h)(1).
</TABLE>
<PAGE> 3
MICRO FOCUS GROUP PLC
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Form 20-F filed on May 29, 1998 for the year
ended January 31, 1998 (the "1998 Form 20-F") pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which incorporates by reference audited
financial statements for the year ended January 31, 1998; the
Registrant's Prospectus/Proxy Statement filed on August 25,
1998 under Rule 424(b)(3) of the Securities Act of 1933; and
Intersolv Inc.'s Form 10-K filed for the year ended April 30,
1998 pursuant to Section 13 of the Exchange Act;
(b) The Registrant's Forms 6-K for the fiscal quarters ending
April 30, 1998 and July 31, 1998 filed on May 14, 1998 and
September 22, 1998, respectively pursuant to Section 13(a) of
the Exchange Act since the end of the fiscal year covered by
the annual report referred to in (a) above;
(c) The description of the Registrant's Ordinary Shares contained
in the 1998 Form 20-F, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
Item 4. Description of Securities.
- ------- -------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
- ------- --------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers and Limitation of Liability.
- ------ ----------------------------------------------------------------------
The Registrant's Articles of Association contain a provision to the
effect that, so far as permitted by the statutory provisions of English law
concerning companies, the directors, other officers and auditor of Registrant
shall be indemnified by the Registrant against liabilities incurred by them in
relation to the exercise of their duties as directors, officers or the auditor
of Registrant, respectively. However, Section 310 of the Companies Act 1985
renders any such indemnity ineffective to the extent it covers any negligence,
default, breach of duty or breach of trust of which the director, other officer
or auditor may be guilty in relation to the Registrant, except to the extent
that it covers liabilities incurred by the director, other officer or auditor,
respectively, in respect of court proceedings in which judgment is given in his
favor.
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The Registrant's policy is to enter into indemnity agreements with each
of its directors and executive officers. In addition, Micro Focus Incorporated,
a subsidiary of Registrant incorporated under the laws of the State of
California, has also entered into indemnity agreements with Registrant's
directors and executive officers. The indemnity agreements provide that
directors and executive officers will be indemnified and held harmless to the
fullest possible extent permitted by law including against all expenses
(including attorneys' fees), judgments, fines and settlement amounts paid or
reasonably incurred by them in any action, suit or proceeding, including any
derivative action by or in the right of the Registrant, on account of their
services as directors, officers, employees or agents of any other company or
enterprise when they are serving in such capacities at the request of the
Registrant. Neither the Registrant nor Micro Focus Incorporated will be
obligated pursuant to the agreements to indemnify or advance expenses to an
indemnified party with respect to proceedings or claims: (i) initiated by the
indemnified party and not by way of defense, except with respect to a proceeding
authorized by the Board of Directors and successful proceedings brought to
enforce a right to indemnification under the indemnification agreements; (ii)
for any amounts paid in settlement of a proceeding unless the Registrant
consents to such settlement; (iii) on account of any suit in which judgment is
rendered against the indemnified party for an accounting of profits made from
the purchase or sale by the indemnified party of securities of the Registrant
pursuant to the provisions of Section 16(b) of the Exchange Act and related
laws; (iv) on account of conduct by an indemnified party that is finally
adjudged to have not been honest and reasonable under the circumstances; (v) on
account of any criminal action or proceeding arising out of conduct that the
indemnified party had reasonable cause to believe was unlawful; (vi) if the
liabilities relating thereto are paid to the indemnified party by an insurance
carrier under a directors' and officers' liability insurance policy maintained
by the Registrant or Micro Focus Incorporated; or (vii) if a final decision by a
court having jurisdiction in the matter shall determine that such
indemnification is not lawful.
The indemnity agreements are not exclusive of any rights a director,
other officer or auditor may have under the Articles of Association, other
agreements, any majority-in-interest vote of the shareholders or vote of
disinterested directors, applicable law or otherwise.
The indemnification provision in the Articles of Association, and the
indemnity agreements, may be sufficiently broad to permit indemnification of the
Registrant's directors and executive officers for liabilities arising under the
Securities Act. In addition, the Registrant has directors' and officers'
liability insurance.
Item 7. Exemption from Registration Claimed.
- ------- -----------------------------------
Not applicable.
Item 8. Exhibits.
- ------- ---------
4.01(1) Registrant's Memorandum of Association dated as of March
28, 1983, as amended and restated to date (incorporated
herein by reference to Exhibit 2.01 of the Registrant's
1998 Form 20-F (File No. 000-19696)).
4.02(1) Registrant's Articles of Association dated as of June 19,
1996, as amended to date (incorporated herein by reference
to Exhibit 2.02 of the Registrant's 1998 Form 20-F).
4.03 Amended and Restated Deposit Agreement dated as of March
16, 1998 among the Registrant, the Bank of New York and all
owners and holders from time to time of American Depository
Receipts. (incorporated herein by reference to Exhibit 2.04
of the Registrant's 1998 Form 20-F).
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<PAGE> 5
4.04 Form of Specimen Certificate for the Registrant's Ordinary
Shares at GBP 0.02 each (incorporated herein by reference
to Exhibit 2.03 of the Registrant's 1998 Form 20-F).
4.05 Registrant's 1998 Share Option Plan.
5.01 Opinion of Memery Crystal.
23.01 Consent of Memery Crystal (included in Exhibit 5.01).
23.02 Consent of Ernst & Young, independent auditors
23.03 Consent of PricewaterhouseCoopers LLP, independent auditors.
24.01 Power of Attorney (see the section in this Registration
Statement entitled "Power of Attorney").
______________________________
(1) Filed on May 2, 1997 as an Exhibit to the Registrant's
Annual Report on Form 20-F.
Item 9. Undertakings.
- ------ ------------
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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) 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;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (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 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.
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<PAGE> 6
(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.
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 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.
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 provisions discussed in Item 6 hereof, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Mountain View, State of California, on the 30 day of
September, 1998.
MICRO FOCUS GROUP PLC
By:/s/ Richard Van Hoesen
-----------------------------------------
Richard Van Hoesen, Senior Vice President,
Chief Financial Officer and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Martin Waters and Richard Van Hoesen, and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, 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 he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- -----
Principal Executive Officer:
/s/ Martin Waters
- ---------------------------- President, Chief Executive September 30, 1998
Martin Waters Officer and a Director
Principal Financial Officer and
Principal Accounting Officer:
/s/ Richard Van Hoesen Senior Vice President, Chief September 30, 1998
- ----------------------------- Financial Officer and Secretary
Richard Van Hoesen
Additional Directors
/s/ J. Michael Gullard
- ----------------------------- Director September 30, 1998
J. Michael Gullard
/s/ Harold Hughes
- ----------------------------- Director September 30, 1998
Harold Hughes
- ------------------------------ Director September ___, 1998
J. Sidney Webb
-6-
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/s/ Gary Greenfield
- ------------------------------ Director September 30, 1998
Gary Greenfield
/s/ Kevin Burns
- ------------------------------ Director September 30, 1998
Kevin Burns
/s/ Michel Berty
- ------------------------------ Director September 22, 1998
Michel Berty
-7-
<PAGE> 9
Exhibit Index
Exhibit No. Description
- ---------- -----------
4.01(1) Registrant's Memorandum of Association dated as of March 28, 1983,
as amended and restated to date (incorporated herein by reference to
Exhibit 2.01 of the Registrant's 1998 Form 20-F (File No. 000-19696)).
4.02(1) Registrant's Articles of Association dated as of June 19, 1996, as
amended to date (incorporated herein by reference to Exhibit 2.02 of
the Registrant's 1998 Form 20-F).
4.03 Amended and Restated Deposit Agreement dated as of March 16, 1998
among the Registrant, the Bank of New York and all owners and holders
from time to time of American Depository Receipts. (incorporated
herein by reference to Exhibit 2.04 of the Registrant's 1998 Form
20-F).
4.04 Form of Specimen Certificate for the Registrant's Ordinary Shares at
GBP 0.02 each (incorporated herein by reference to Exhibit 2.03 of the
Registrant's 1998 Form 20-F).
4.05 Registrant's 1998 Share Option Plan.
5.01 Opinion of Memery Crystal.
23.01 Consent of Memery Crystal (included in Exhibit 5.01).
23.02 Consent of Ernst & Young, independent auditors
23.03 Consent of PricewaterhouseCoopers LLP, independent auditors.
24.01 Power of Attorney (see the section in this Registration Statement
entitled "Power of Attorney").
_______________________
(1) Filed on May 2,1997 as an Exhibit to the Registrant's Annual Report
on Form 20-F.
-8-
<PAGE> 10
EXHIBIT 4.05
Rules of the 1998 Micro Focus Share Option Plan ("the Plan")
1. Definitions
In this Plan:
(a) "Board" means the board of directors of the Company;
(b) "Code" means the United States Internal Revenue Code of 1986 (as amended);
(c) "The Company" means Micro Focus Group Public Limited Company incorporated
in England with number 1709998;
(d) "Control" means the definition thereof contained in section 840 of the UK
Income and Corporation Taxes Act 1988;
(e) "Date of Grant" means in relation to any Option, the date on which such
Option is granted in accordance with Rule 9;
(f) "Employer Corporation" means any company within the Group for which
an Eligible Person who has been granted an Option under this Plan performs
services;
(g) "Eligible Person" means a person to whom an Option may be granted as
defined in Rule 2 below;
(h) "Effective Date" means the completion date of the Merger;
(i) "Group" means the Company and every other company of which the Company has
direct or indirect Control;
(j) "Incentive Stock Option" means an Option which qualifies as an incentive
stock option within the meaning of section 422 of the Code;
(k) "ISO Group" means the Company and any other company which is a Parent
Corporation or Subsidiary Corporation of the Company;
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(l) "Merger" means the merger of Intersolv, Inc. with and into Tower Merger
Sub Inc., a Subsidiary Corporation of the Company.(1)
(m) "Option" means a right granted by the Company in accordance with this Plan
to subscribe for Shares;
(n) "Parent Corporation" means any corporation (other than the Company)
in an unbroken chain of corporations ending with the Company if, at the time in
question, each of the corporations other than the Company owns stock (or shares)
possessing 50% or more of the total combined voting power of all classes of
stock (or shares) in one of the other corporations in such chain;
(o) "Shares" means fully paid ordinary shares in the capital of the Company;
(p) "Subsidiary Corporation" means any corporation (other than the Company)
in an unbroken chain of corporations beginning with the Company if, at the time
in question, each of the corporations other than the last corporation in the
unbroken chain owns stock (or shares) possessing 50% or more of the total
combined voting power of all classes of stock (or shares) in one of the other
corporations in such chain;
(q) "10% Shareholder" means a person who owns shares representing more than
10% of the total combined voting power of all classes of shares in any company
which is a member of the ISO Group at the Date of Grant of an Option;
(r) "fair market value" means the average of the middle market quotations of
a share as derived from the Daily Official List of The London Stock Exchange on
the three business days immediately preceding the Date of Grant.
2. Persons to whom Options may be granted
(a) Options may only be granted to current or former employees and directors
of a member of the Group ("Eligible Persons").
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_______________________
(1) The completion date of the merger was September 24, 1998.
<PAGE> 12
(b) Subject to Rule 6 below, Incentive Stock Options may be granted to such
Eligible Persons as the Board from time to time and in its absolute discretion
may determine.
3. Non-transferability of Options
Options shall be personal to the person to whom they are granted and shall lapse
forthwith if they are purportedly transferred (otherwise than to personal
representatives upon death) assigned, mortgaged, charged or otherwise alienated
or if that person is adjudicated bankrupt or does or suffers any other act or
thing whereby he or she would or might be deprived of the legal or beneficial
ownership of the Options.
4. Number of Shares available to be put under option
(a) Subject to Rule 13 below (relating to variation in share capital), the
aggregate of (1) the total number of Shares in respect of which Options may be
granted in accordance with this Plan during the period from the Effective Date
to August 18, 2008 and (2) the total number of Shares which may be issued under
all other options granted by the Company and which immediately prior to the
completion of the Merger remain capable of exercise may not exceed 15% of the
issued share capital of the Company, as enlarged, immediately following
completion of the Merger (or an aggregate of 25,000,000 Shares, if less).
(b) For the avoidance of doubt, where Options under this Plan or any other
share option plan or scheme established by the Company lapse or cease to be
exercisable the Shares under such options may be the subject of new grants of
Options under this Plan without being included in the limit in paragraph (a)
above. To this end, in addition to the aforementioned limit, the total number of
Shares in respect of which Options may be granted under this Plan shall be
increased to include the number of all or any Shares which were the subject of
options which have lapsed or ceased to be exercisable under other plans or
schemes or former plans or schemes established by the Company.
(c) The number of shares subject to an option granted in accordance with
the Micro Focus Inland Revenue Approved Share Option Scheme, which option
certificate provides that the source of shares subject thereto is the pool of
shares available for grant in accordance with this Plan, shall reduce by the
same amount, the number of Shares in respect of which Options may be granted in
accordance with this Plan. In accordance with paragraph 4(b), where such Micro
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<PAGE> 13
Focus Inland Revenue Approved Share Option Scheme options lapse or cease to be
exercisable, the shares under such options may be the subject of new grants of
Options under this Plan.
5. Maximum number of Shares in respect of which Options may be granted to any
person
Subject to Rule 13 below, the maximum number of Shares in respect of which
Options may be granted to any person in accordance with this Plan in the period
of this authority shall be 375,000 Shares. Save that any person who commences
employment for the first time (whether before or after the adoption of this
Plan) with the Company or a member of the Group shall be eligible to be granted
Options in respect of up to 1,500,000 Shares in the period of 12 months after
the commencement of his employment.
6. Further restrictions on the grant of Incentive Stock Options
(a) Incentive Stock Options may only be granted to employees (as that term
is used in section 422 of the Code) of any company which is a member of the ISO
Group at the Date of Grant.
(b) The aggregate fair market value (determined as of the Date of Grant) of
Shares in respect of which Incentive Stock Options are exercisable for the first
time by an employee during any calendar year pursuant to this Plan (and under
any other plan permitting the granting of Incentive Stock Options which might be
established by any company in the ISO Group) may not exceed US$100,000. If the
fair market value of Shares on the Date of Grant in respect of which Incentive
Stock Options are exercisable for the first time by an employee during any
calendar year exceeds US$100,000, then the Options for the first US$100,000
worth of Shares to become exercisable in such calendar year will be Incentive
Stock Options and the Options for the amount in excess of US$100,000 that become
exercisable in that calendar year will not be Incentive Stock Options.
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<PAGE> 14
7. Payment for grant of Options
The amount, if any, payable in consideration of the grant of any Options shall
be as the Board may decide but in any event shall not be more than GBP1, which
shall not be returnable.
8. Exercise Price
The exercise price payable for any Share to be acquired upon the exercise of any
Option shall be not less than the fair market value of a Share on the Date of
Grant:
(a) In the case of an Incentive Stock Option granted to a 10% Shareholder, the
exercise price shall be not less than 110% of the fair market value of a Share
on the Date of Grant; and
(b) in any event, the exercise price shall be not less than the nominal value
of a Share.
9. Times at which Options may be granted
(a) Options may only be granted on or after the Effective Date and thereafter
during any of the following periods:
(i) within the period of 30 days immediately following the date of shareholder
approval of this Plan (but no earlier than the Effective Date); or
(ii) within the period of 42 days immediately following the date on which the
Company announces its interim or preliminary annual trading results
for any period to the press and The London Stock Exchange (provided
that in respect of directors of the Company that such date does not fall
during the period of two months prior to the announcement of interim or
preliminary annual trading results or, if shorter, the period from the
relevant financial period end up to and including the time of the
announcement); or
(iii) to any person who commences employment with a member of the Group for the
first time, within the period of 45 days immediately thereafter (provided
that in respect of directors of the Company such date does not fall during
the period of two months prior to the announcement of interim or
preliminary annual trading results or, if shorter, the period from
the relevant financial period end up to and
including the time of the announcement).
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<PAGE> 15
(b) the Board may grant Options outside the periods specified in this Plan
in circumstances which the Board in its absolute discretion deem sufficiently
exceptional to justify the grant of Options at that time.
10. Performance Targets
(a) The exercise of any Option may by its terms be conditional upon the
attainment of one or more objective performance targets ("Performance Targets").
The terms of each Performance Target shall themselves be determined by the
Executive Remuneration Committee of the Board in its discretion and shall be
specified to the relevant Eligible Person at the same time as the Date of Grant
to such Eligible Person.
(b) Where an issue or reorganisation by the Company or any member of the
Group (including, without limitation, any issue of shares or securities or any
reduction of capital or sub-division or consolidation of shares) or any other
event or circumstance (including a change in accounting policies or practice or
a change in the length of the Company's accounting period) causes the Executive
Remuneration Committee reasonably to consider that a different Performance
Target (including in the case of Rules 11(b) and 14, an appropriate reduction in
the period for achieving such a Performance Target) would be a more appropriate
measure of performance and that the different Performance Target will be a
fairer measure of such performance or that any amended Performance Target will
provide a more effective incentive to the holders of Options, the Executive
Remuneration Committee after due consultation with the auditors of the Company
may determine that a new Performance Target shall be substituted for the
existing Performance Target applicable to such Option or Options.
(c) Where the Executive Remuneration Committee has imposed a Performance
Target under Rule 10(a) upon the grant of an Option, that Option may not be
exercised except in accordance with any such Performance Target, as from time to
time varied in accordance with Rule 10(b).
11. Option Period
(a) No Option shall be capable of being exercised later than 10 years after
the Date of Grant, or in the case of an Incentive Stock Option granted to a 10%
Shareholder, 5 years after the Date of Grant.
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<PAGE> 16
(b) Exercise of an Option shall always be subject to the following additional
provisions: (i) if the option holder ceases to provide services to any member of
the Group for any reason except the option holder's death or disability (whether
such disability is temporary or permanent, partial or total, as determined by
the Board), then the option holder may exercise such option holder's Options
only to the extent that such Options would have been exercisable upon the
effective date of such termination no later than three months after the
effective date of such termination (or such longer or shorter time period as may
be specified in the Option), but in any event, no later than the expiration date
of the Options; and (ii) if the option holder ceases to provide services to any
member of the Group because of the option holder's death or disability (or the
option holder dies within three months of termination for any reason other than
death or disability) then the option holder's Options may be exercised only to
the extent that such Options would have been exercisable by the option holder on
the effective date of such termination and must be exercised by the option
holder (or the option holder's legal representative or authorised assignee) no
later than 12 months after the effective date of such termination (or such
longer or shorter time period as may be specified in the Option), but in any
event no later than the expiration date of the Options. The phrase "ceases to
provide services" shall include termination of employment.
(c) Options shall become exercisable at such times and in such increments as
shall be determined by the Board.
12. Stock Exchange Listing
All Shares allotted upon the exercise of any Option shall rank pari passu in all
respects with the Shares then in issue and the Company shall apply to the
Council of The London Stock Exchange for Shares allotted pursuant to any Option
to be admitted to the Official List. The Company shall provide to each person
who shall hold one or more Options a copy of the annual report of the Company as
soon as reasonably practicable after it is released by the Company.
13. Variation in share capital
(a) As provided for in the rules of The London Stock Exchange, in the event
of any increase in the number of Shares issued by way of capitalisation or
rights issue or open offer, or any sub-division, consolidation or reduction of
any other variation of share capital, the Board will make the appropriate
adjustment to:
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<PAGE> 17
(i) the restrictions imposed by Rules 4 and 5 above; and/or
(ii) the number of Shares which are subject to any Option; and/or
(iii) the exercise price payable for each Share under any Option;
provided that the exercise price for any Share shall not be less than the
nominal value of such Share and no adjustment shall cause an Option to be
capable of being exercised later than as mentioned in Rule 11 above.
(b) As required by the rules of The London Stock Exchange, except in the case
of a capitalisation issue no such adjustment shall be made without the prior
written confirmation of the auditors of the Company for the time being that it
is in their opinion fair and reasonable.
(c) Written notice of any adjustment shall be given to any person granted
an Option who is affected thereby.
14. Winding-up of the Company and change of control
(a) Notwithstanding Rule 11 above, it shall be a term and condition of any
Option that in the event of notice being given to shareholders of a resolution
for the winding-up of the Company, the Option shall be capable of exercise
within the period of six months commencing on the date of such notice and the
Option shall lapse at the end of such period or on the winding up of the
Company, if earlier.
(b) If the Company is succeeded by a successor corporation, or if any person
("the Offeror") obtains Control of the Company, then the successor corporation
or Offeror may assume, convert or replace any or all outstanding Options, which
action will be binding on all option holders. In the alternative, the successor
corporation or Offeror may substitute equivalent options or provide
substantially similar consideration to option holders as was provided to
shareholders (after taking into account the existing provisions of the Options).
If such successor corporation or Offeror refuses to assume or substitute
Options, such Options shall accelerate and become exercisable in full on such
conditions as the Board shall determine prior to such succession or change of
Control. Any Options not so replaced or exercised shall lapse and cease to be
exercisable.
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<PAGE> 18
15. Alteration of the Plan
(a) Subject to Rule 15(b) below, the Board may at any time alter or add to all
or any of the provisions of the Plan in any respect.
(b) Subject to Rule 15(c) below, no alterations or addition shall be made to
any provision of the Plan without the prior approval of shareholders of the
Company in general meeting except for: (i) minor amendments to benefit the
administration of the Plan; or (ii) alterations or additions that are necessary
or desirable in order to comply with the laws and regulations for the time being
in force in the United Kingdom or the United States of America or to obtain or
maintain approval of the Plan from any government or other regulatory or
advisory body whether in the United Kingdom, the United States of America or
elsewhere, provided that any such alteration or addition shall not affect the
basic principles of the Plan; or (iii) alternations or additions to ensure and
maintain treatment as Incentive Stock Options of those Options granted and to be
granted that are intended to be treated as such.
(c) No alterations or additions shall be made to an outstanding Option to the
disadvantage of the holder thereof without the prior written consent of such
holder.
16. Administration and Interpretation of the Plan
The Plan shall be administered by the Board or, to the extent necessary to
comply with the laws and regulations of the United Kingdom and the United States
of America, by the Executive Remuneration Committee of the Board. Subject to the
general purposes, terms and conditions of the Plan, the Board or, if applicable,
the Executive Remuneration Committee of the Board, shall have full power to
implement and carry out the Plan. Any determination made by the Board, or if
applicable, the Executive Remuneration Committee of the Board, shall be made in
its sole discretion on the Date of Grant of the Option or, unless in
contravention of any express term of the Plan or Option, at any later time, and
such determination shall be final and binding on the members of the Group and on
all persons having an interest in any Option under the Plan.
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<PAGE> 19
17. Duration of the Plan
The authority to grant Options under the Plan will expire on August 18, 2008,
the last day of the ten year period commencing on the date this Plan is adopted
by the Board.
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<PAGE> 20
EXHIBIT 5.01
30 September 1998
MICRO FOCUS GROUP plc MEMERY CRYSTAL
The Lawn Solicitors
Old Bath Road 31 Southampton Row
Newbury London WC1B 5HT
Berkshire RG14 1QN Telephone: +44(0) 171 242 5905
LDE No: 156 Chancery Lane
E-mail: [email protected]
Fax: +44(0) 171 242 2058
Group 4 Fax: +44(0) 171 405 7674
Dear Sirs
Registration Statement on Form S-8
- ----------------------------------
1. This opinion is given in connection with the registration under the US
Securities Act 1933, as amended ("the Securities Act"), of Ordinary
Shares of 2p nominal value each (each a "Share" and plurally referred
to as the "Shares") in Micro Focus Group plc ("the Company"), which
may be issued pursuant to options issued under the Intersolv 1982
Stock Option Plan, the Intersolv 1992 Stock Option Plan, the Intersolv
1997 Employee Option Plan, the Q & E Stock Option Plan and the
TechGnosis Stock Option Plan and warrants issued by Intersolv, Inc. to
certain of its employees and assumed by the Company on its acquisition
of the stock of Intersolv, Inc. in September 1998 (together "the
Assumed Equity Awards") and the 1998 Micro Focus Share Option Plan
("the 1998 Plan").
2. We have acted as English legal advisers to the Company in connection
with the foregoing. In so acting, we have examined such certificates
of the Company and directors and/or officers thereof and originals or
copies of all such corporate documents and records of the Company and
all such other documents as we deemed relevant and necessary as a
basis for our opinion hereinafter set forth. We have, with your
consent, relied upon such certificates of directors and/or officers of
the Company and upon statements and information furnished by directors
and/or officers of the Company with respect to their authority and the
accuracy of all factual matters contained therein which we have not
independently established. We have also assumed the genuineness of all
signatures thereon or on the originals of documents referred to
therein.
3. This opinion is limited to English law as at the date hereof
applicable and as currently applied by the English Courts and is given
on the basis that it will be governed by and be construed in
accordance with current English law. We have accordingly not made any
investigations of the laws of any jurisdictions other than England.
<PAGE> 21
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30 September 1998
4. You have confirmed to us that all necessary proceedings have been
taken by you in connection with the assumption by the Company of the
Assumed Equity Awards and in connection with the adoption by the
Company of the 1998 Plan and we have therefore assumed such in giving
the opinion contained herein.
5. It is our opinion that the Shares that may be issued upon the exercise
of the Assumed Equity Awards or upon exercise of the options to be
granted under the 1998 Plan when issued in accordance with the terms
of such options and the plans pursuant to which such options were duly
granted, and in accordance with the Company's Memorandum and Articles
of Association, and in the manner referred to in the relevant
prospectus associated with the Form S-8 Registration Statement to be
filed by the Company on or around 30th September 1998 ("the
Registration Statement") will be legally issued, fully paid and
non-assessable.
6. For the purpose of this opinion, we have assumed that the term
"non-assessable" in relation to the Shares means under English law
that holders of such Shares, having fully paid up all amounts due on
such Shares as to the nominal amount and any premium thereon, are
under no further personal liability to contribute to the assets or
liabilities of the Company in their capacities purely as holders of
such Shares.
This opinion is strictly limited to the matters stated herein and is not to be
read as extending by implication to any other matter whatsoever.
This opinion is given to you solely for your benefit and for the purpose of the
Registration Statement. It is not to be transmitted to any other person nor is
it to be relied upon by any other person or for any purpose or quoted or
referred to in any public document without our prior written consent except that
we consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the references to us in the Registration
Statement. In giving the consent, we do not admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations thereunder.
Yours faithfully
/s/ Memery Crystal
MEMERY CRYSTAL
<PAGE> 22
EXHIBIT 23.02
CONSENT OF ERNST & YOUNG, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the employee share plans named on the facing sheet thereof of
our reports dated May 1, 1998 with respect to the consolidated financial
statements of Micro Focus Group Public Limited Company for the year ended
January 31, 1998 incorporated by reference in its Report of Foreign Issuer (Form
6-K) and in its Annual Report (Form 20-F) and the related financial statement
schedule included therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young
Reading, England
25 September, 1998
<PAGE> 23
EXHIBIT 23.03
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Micro Focus Group Public Limited Company on Form S-8 of our report, dated June
17, 1998, on our audits of the consolidated financial statements of Intersolv,
Inc. ("the Company"), which report is included in the Company's Annual Report on
Form 10-K for the year ended April 30, 1998
/s/ PricewaterhouseCoopers LLP
McLean, Virginia
September 25, 1998
