<PAGE> 1
As filed with the Securities and Exchange Commission on December 15, 1999
Registration No. 33-___________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MERANT PLC
(Exact name of registrant as specified in its charter)
England and Wales Not applicable
State or Other Jurisdiction (I.R.S. Employer
of or Organization) Identification No.)
The Lawn, Old Bath Road
Newbury, England RG14 1QN
(Address of principal executive offices)
EnterpriseLink Technology Corporation 1996 Stock Plan
EnterpriseLink Technology Corporation 1999 Stock Option Plan
Assumed by the Registrant
MERANT plc 1994 Employee Benefit Trust
(Full title of the plans)
Kenneth A. Sexton
Senior Vice President, Chief Financial Officer and Secretary
MERANT plc
c/o MERANT Inc.
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
Senior Counsel
MERANT plc
c/o MERANT Inc.
701 East Middlefield Road
Mountain View, California 94043
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- --------------------------------------- ----------------- ----------------------- ------------------------- ----------------
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities Being Offering Price Aggregate Offering Registration
Being Registered Registered Per Share Price Fee
- --------------------------------------- ----------------- ----------------------- ------------------------- ----------------
Ordinary Shares, GBP 0.02 par value,
five of which are represented by one
American Depositary Share (1) 186,626 (2) $1.1583 (3) $216,168.90 $57.07
Ordinary Shares, GBP 0.02 par value,
five of which are represented by one
American Depositary Share (1) 329,730 (4) $5.2922 (3) $1,744,997.11 $460.68
Ordinary Shares, GBP 0.02 par value,
five of which are represented by one
American Depositary Share 1,000,000 (5) $7.325 (6) $7,325,000.00 $1,933.80
</TABLE>
<PAGE> 2
(1) A separate registration statement on Form F-6 (File No. 33-34422)
filed with the Securities and Exchange Commission on April 18, 1990
has been declared effective with respect to the American Depositary
Shares represented by American Depositary Receipts issuable on a
one-for-five basis with the Ordinary Shares registered hereby upon
deposit of such Ordinary Shares.
(2) Shares subject to outstanding options as of December 15, 1999 under
the EnterpriseLink Technology Corporation 1996 Stock Plan.
(3) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
(4) Shares subject to outstanding options as of December 15, 1999 under
the EnterpriseLink Technology Corporation 1999 Stock Option Plan.
(5) Shares under the 1994 Employee Benefit Trust.
(6) Average of the high and low prices reported in the consolidated
reporting system (Nasdaq) as of December 9, 1999 pursuant to Rule
457(c).
-2-
<PAGE> 3
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 November 2, 1999 with the
Commission (the "1999 Form 20-F") pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act"), that
contains audited financial statements for the fiscal year ended April
30, 1999.
(b) The description of the Registrant's Ordinary Shares contained in the
1999 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.
None.
Item 6. Indemnification of Directors and Officers.
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 and other officers of Registrant shall be indemnified
by the Registrant against liabilities incurred by them in relation to the
exercise of their duties as directors or officers 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 or other officer may be guilty in relation
to the Registrant, except to the extent that it covers liabilities incurred by
the director or other officer, respectively, in respect of court proceedings in
which judgment or relief is given in his favor.
The Registrant's policy is to enter into indemnity agreements with each of
its directors and executive officers. In addition, MERANT Inc., a subsidiary of
Registrant incorporated under the laws of the State of California, has also
entered into indemnity agreements with certain of the 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'
fee), 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 the Registrant or 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
MERANT Inc. 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
-3-
<PAGE> 4
party by an insurance carrier under a director' and officers' liability
insurance policy maintained by the Registrant or MERANT Inc.; 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 or
other officer 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 EnterpriseLink Technology Corporation 1996 Stock Plan, as
amended.
4.02 EnterpriseLink Technology Corporation 1999 Stock Option Plan.
4.03 MERANT plc 1994 Employee Benefit Trust (incorporated herein by
reference to Exhibit 4.03 of Registrant's Form S-8 Registration
Statement filed with the SEC on April 9, 1997.)
4.04 MERANT plc 1999 Employee Share Purchase Plan through which shares
under the MERANT plc 1994 Employee Benefit Trust can be
issued or allocated, as the case may be.
5.01 Opinion of Memery Crystal.
23.01 Consent of Memery Crystal (included in Exhibit 5.01).
23.02 Consent of Ernst & Young.
23.03 Consent of PricewaterhouseCoopers LLP.
24.01 Power of Attorney (see the section in this Registration
Statement entitled "Power of Attorney").
Item 9. Undertakings.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (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 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;
-4-
<PAGE> 5
(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) do not
apply if the Registration Statement is on Form S-3, Form S-8
or Form F-3, and 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 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; and
(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 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 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 foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
-5-
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Rockville, State of Maryland, on the 15th day of
December, 1999.
MERANT plc
By: /s/ Kenneth A. Sexton
-----------------------------------
Kenneth A. Sexton
Senior Vice President,
Chief Financial Officer and
Secretary
-6-
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Gary Greenfield and Kenneth Sexton, 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 or it 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, 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/ Gary Greenfield
- ------------------- President, Chief Executive December 14, 1999
Gary Greenfield Officer and a Director
Principal Financial and
Accounting Officer:
/s/ Kenneth A. Sexton
- ---------------------- Senior Vice President, Chief December 14, 1999
Kenneth A. Sexton Financial Officer and
Secretary
Additional Directors:
/s/ J. Michael Gullard
- ----------------------
J. Michael Gullard Director and Chairman December 14, 1999
/s/ Michel Berty
- ----------------------
Michel Berty Director December 14, 1999
/s/ Kevin Burns
- ----------------------
Kevin Burns Director December 14, 1999
- ----------------------
Harold Hughes Director December __, 1999
/s/ Barry Lynn
- ----------------------
Barry Lynn Director December 14, 1999
/s/ Don Watters
- ----------------------
Don Watters Director December 14, 1999
-7-
<PAGE> 8
Exhibit Index
Exhibit No. Description
- ----------- -----------
4.01 EnterpriseLink Technology Corporation 1996 Stock Plan.
4.02 EnterpriseLink Technology Corporation 1999 Stock Option Plan.
4.04 MERANT plc 1999 Employee Share Purchase Plan through which shares
under the MERANT plc 1994 Employee Benefit Trust can be
issued or allocated, as the case may be.
5.01 Opinion of Memery Crystal.
23.01 Consent of Memery Crystal (included in Exhibit 5.01).
23.02 Consent of Ernst & Young.
23.03 Consent of PricewaterhouseCoopers LLP.
-8-
<PAGE> 9
EXHIBIT 4.01
ENTERPRISELINK TECHNOLOGY CORPORATION
1996 STOCK PLAN
1. Purposes of the Plan. The purposes of this Plan are to attract and retain
the best available personnel for positions of substantial responsibility,
to provide additional incentive to Employees, Directors and Consultants and
to promote the success of the Company's business. Options granted under the
Plan may be Incentive Stock Options or Nonstatutory Stock Options, as
determined by the Administrator at the time of grant. Stock Purchase Rights
may also be granted under the Plan.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its Committees as shall be
administering the Plan in accordance with Section 4 hereof.
(b) "Applicable Laws" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws,
U.S. federal and state securities laws, the Code, any stock exchange
or quotation system on which the Common Stock is listed or quoted and
the applicable laws of any foreign country or jurisdiction where
Options or Stock Purchase Rights are granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means a committee of Directors appointed by the Board in
accordance with Section 4 hereof.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means EnterpriseLink Technology Corporation, a California
corporation.
(h) "Consultant" means any person who is engaged by the Company or any
Parent or Subsidiary to render consulting or advisory services to such
entity.
(i) "Director" means a member of the Board of Directors of the Company.
(j) "Employee" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. A
Service Provider shall not cease to be an Employee in the case of (i)
any leave of absence approved by the Company or (ii) transfers between
locations of the Company or between the Company, its Parent, any
Subsidiary, or any successor. For purposes of Incentive Stock Options,
no such leave may exceed 90 days, unless reemployment upon expiration
of such leave is guaranteed by statute or contract. If reemployment
upon expiration of a leave of absence approved by the Company is not
so guaranteed, on the 181st day of such leave any Incentive Stock
Option held by the Optionee shall cease to be treated as an Incentive
Stock Option and shall be treated for tax purposes as a Nonstatutory
Stock Option. Neither service as a Director nor payment of a
director's fee by the Company shall be sufficient to constitute
"employment" by the Company.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(l) "Fair Market Value" means, as of any date, the value of Common Stock
determined as follows:
(i) If the Common Stock is listed on any established stock exchange
or a national market system, including without limitation the
Nasdaq National Market or The Nasdaq SmallCap Market of The
Nasdaq Stock Market, its Fair Market Value shall be the closing
sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such exchange or system for the last
market trading day prior to the time of determination, as
reported in The Wall Street Journal or such other source as the
Administrator deems reliable;
<PAGE> 10
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the high bid and low asked
prices for the Common Stock on the last market trading day prior
to the day of determination; or
(iii)In the absence of an established market for the Common Stock,
the Fair Market Value thereof shall be determined in good faith
by the Administrator.
(m) "Incentive Stock Option" means an option intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code.
(n) "Nonstatutory Stock Option" means an Option not intended to qualify as
an Incentive Stock Option.
(o) "Officer" means a person who is an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(p) "Option" means a stock option granted pursuant to the Plan.
(q) "Option Agreement" means a written or electronic agreement between the
Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the terms
and conditions of the Plan.
(r) "Option Exchange Program" means a program whereby outstanding Options
are exchanged for Options with a lower exercise price.
(s) "Optioned Stock" means the Common Stock subject to an Option or a
Stock Purchase Right.
(t) "Optionee" means the holder of an outstanding Option or Stock Purchase
Right granted under the Plan.
(u) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(v) "Plan" means this 1996 Stock Plan.
(w) "Restricted Stock" means shares of Common Stock acquired pursuant to a
grant of a Stock Purchase Right under Section 11 below.
(x) "Section 16(b)" means Section 16(b) of the Securities Exchange Act of
1934, as amended.
(y) "Service Provider" means an Employee, Director or Consultant.
(z) "Share" means a share of the Common Stock, as adjusted in accordance
with Section 12 below.
(aa) "Stock Purchase Right" means a right to purchase Common Stock
pursuant to Section 11 below.
(bb) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 12 of the
Plan, the maximum aggregate number of Shares which may be subject to option
and sold under the Plan is 1,200,000 Shares, which includes that
200,000-share increase adopted by the Board on December 19, 1997 and that
250,000-share increase adopted by the Board on October 23, 1998. The Shares
may be authorized but unissued, or reacquired Common Stock.
If an Option or Stock Purchase Right expires or becomes unexercisable
without having been exercised in full, or is surrendered pursuant to an
Option Exchange Program, the unpurchased Shares which were subject thereto
shall become available for future grant or sale under the Plan (unless the
Plan has terminated). However, Shares that have actually been issued under
the Plan, upon exercise of either an Option or Stock Purchase Right, shall
not be returned to the Plan and shall not become available for future
-2-
<PAGE> 11
distribution under the Plan, except that if Shares of Restricted Stock are
repurchased by the Company at their original purchase price, such Shares
shall become available for future grant under the Plan.
4. Administration of the Plan.
(a) The Plan shall be administered by the Board or a Committee appointed
by the Board, which Committee shall be constituted to comply with
Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan
and, in the case of a Committee, the specific duties delegated by the
Board to such Committee, and subject to the approval of any relevant
authorities, the Administrator shall have the authority in its
discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Options and Stock
Purchase Rights may from time to time be granted hereunder;
(iii)to determine the number of Shares to be covered by each such
award granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions of any Option or Stock
Purchase Right granted hereunder. Such terms and conditions
include, but are not limited to, the exercise price, the time or
times when Options or Stock Purchase Rights may be exercised
(which may be based on performance criteria), any vesting
acceleration or waiver of forfeiture restrictions, and any
restriction or limitation regarding any Option or Stock Purchase
Right or the Common Stock relating thereto, based in each case on
such factors as the Administrator, in its sole discretion, shall
determine;
(vi) to determine whether and under what circumstances an Option may
be settled in cash under subsection 9(e) instead of Common Stock;
(vii)to reduce the exercise price of any Option to the then current
Fair Market Value if the Fair Market Value of the Common Stock
covered by such Option has declined since the date the Option was
granted;
(viii) to initiate an Option Exchange Program;
(ix) to prescribe, amend and rescind rules and regulations relating to
the Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax
treatment under foreign tax laws;
(x) to allow Optionees to satisfy withholding tax obligations by
electing to have the Company withhold from the Shares to be
issued upon exercise of an Option or Stock Purchase Right that
number of Shares having a Fair Market Value equal to the amount
required to be withheld. The Fair Market Value of the Shares to
be withheld shall be determined on the date that the amount of
tax to be withheld is to be determined. All elections by
Optionees to have Shares withheld for this purpose shall be made
in such form and under such conditions as the Administrator may
deem necessary or advisable; and
(xi) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan.
(c) Effect of Administrator's Decision. All decisions, determinations and
interpretations of the Administrator shall be final and binding on all
Optionees.
-3-
<PAGE> 12
5. Eligibility.
(a) Nonstatutory Stock Options and Stock Purchase Rights may be granted to
Service Providers. Incentive Stock Options may be granted only to
Employees.
(b) Each Option shall be designated in the Option Agreement as either an
Incentive Stock Option or a Nonstatutory Stock Option. However, in
accordance with Section 422(d) of the Code and notwithstanding such
designation, to the extent that the aggregate Fair Market Value of the
Shares with respect to which Incentive Stock Options are exercisable
for the first time by the Optionee during any calendar year (under all
plans of the Company and any Parent or Subsidiary) exceeds $100,000,
such Options shall be treated as Nonstatutory Stock Options. For
purposes of this Section 5(b), Incentive Stock Options shall be taken
into account in the order in which they were granted. The Fair Market
Value of the Shares shall be determined as of the time the Option with
respect to such Shares is granted.
(c) Neither the Plan nor any Option or Stock Purchase Right shall confer
upon any Optionee any right with respect to continuing the Optionee's
relationship as a Service Provider with the Company, nor shall it
interfere in any way with his or her right or the Company's right to
terminate such relationship at any time, with or without cause.
6. Term of Plan. The Plan shall become effective upon its adoption by the
Board. It shall continue in effect for a term of ten (10) years unless
sooner terminated under Section 14 of the Plan.
7. Term of Option. The term of each Option shall be stated in the Option
Agreement; provided, however, that the term shall be no more than ten (10)
years from the date of grant thereof. In the case of an Incentive Stock
Option granted to an Optionee who, at the time the Option is granted, owns
stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of
the Option shall be five (5) years from the date of grant or such shorter
term as may be provided in the Option Agreement.
8. Option Exercise Price and Consideration.
(a) The per share exercise price for the Shares to be issued upon exercise
of an Option shall be such price as is determined by the
Administrator, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of grant of such
Option, owns stock representing more than ten percent (10%)
of the voting power of all classes of stock of the Company
or any Parent or Subsidiary, the exercise price shall be no
less than 110% of the Fair Market Value per Share on the
date of grant.
(B) granted to any other Employee, the per Share exercise price
shall be no less than 100% of the Fair Market Value per
Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option
(A) granted to a Service Provider who, at the time of grant of
such Option, owns stock representing more than ten percent
(10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the exercise price
shall be no less than 110% of the Fair Market Value per
Share on the date of the grant.
(B) granted to any other Service Provider, the per Share
exercise price shall be no less than 85% of the Fair Market
Value per Share on the date of grant. (iii) Notwithstanding
the foregoing, Options may be granted with a per Share
exercise price other than as required above pursuant to a
merger or other corporate transaction.
(b) The consideration to be paid for the Shares to be issued upon exercise
of an Option, including the method of payment, shall be determined by
the Administrator (and, in the case of an Incentive Stock Option,
-4-
<PAGE> 13
shall be determined at the time of grant). Such consideration may
consist of (1) cash, (2) check, (3) promissory note, (4) other Shares
which (x) in the case of Shares acquired upon exercise of an Option,
have been owned by the Optionee for more than six months on the date
of surrender, and (y) have a Fair Market Value on the date of
surrender equal to the aggregate exercise price of the Shares as to
which such Option shall be exercised, (5) consideration received by
the Company under a cashless exercise program implemented by the
Company in connection with the Plan, or (6) any combination of the
foregoing methods of payment. In making its determination as to the
type of consideration to accept, the Administrator shall consider if
acceptance of such consideration may be reasonably expected to benefit
the Company.
9. Exercise of Option. (a) Procedure for Exercise; Rights as a Shareholder.
Any Option granted hereunder shall be exercisable according to the terms
hereof at such times and under such conditions as determined by the
Administrator and set forth in the Option Agreement, but in no case at a
rate of less than 20% per year over five (5) years from the date the Option
is granted. Notwithstanding the foregoing, any Option granted to an
officer, director or consultant (as such terms are used in Section
260.140.41 of Title 10 of the California Code of Regulations) may vest at
any rate determined by the Administrator. Unless the Administrator provides
otherwise, vesting of Options granted hereunder shall be tolled during any
unpaid leave of absence. An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed exercised when the Company receives: (i) written
or electronic notice of exercise (in accordance with the Option Agreement)
from the person entitled to exercise the Option, and (ii) full payment for
the Shares with respect to which the Option is exercised. Full payment may
consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Shares
issued upon exercise of an Option shall be issued in the name of the
Optionee. Until the Shares are issued (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of
the Company), no right to vote or receive dividends or any other rights as
a shareholder shall exist with respect to the Shares, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be issued)
such Shares promptly after the Option is exercised. No adjustment will be
made for a dividend or other right for which the record date is prior to
the date the Shares are issued, except as provided in Section 12 of the
Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares thereafter available, both for purposes of the Plan and
for sale under the Option, by the number of Shares as to which the Option
is exercised.
(b) Termination of Relationship as a Service Provider. If an Optionee
ceases to be a Service Provider, such Optionee may exercise his or her
Option within such period of time as is specified in the Option
Agreement (which shall be at least thirty (30) days) to the extent
that the Option is vested on the date of termination (but in no event
later than the expiration of the term of the Option as set forth in
the Option Agreement). In the absence of a specified time in the
Option Agreement, the Option shall remain exercisable for three (3)
months following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option shall
revert to the Plan. If, after termination, the Optionee does not
exercise his or her Option within the time specified by the
Administrator, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.
(c) Disability of Optionee. If an Optionee ceases to be a Service Provider
as a result of the Optionee's disability, the Optionee may exercise
his or her Option within such period of time as is specified in the
Option Agreement (which shall be at least six (6) months) to the
extent the Option is vested on the date of termination (but in no
event later than the expiration of the term of such Option as set
forth in the Option Agreement). In the absence of a specified time in
the Option Agreement, the Option shall remain exercisable for twelve
(12) months following the Optionee's termination. If such disability
-5-
<PAGE> 14
is not a "disability" as such term is defined in Section 22(e)(3) of
the Code, in the case of an Incentive Stock Option such Incentive
Stock Option shall automatically cease to be treated as an Incentive
Stock Option and shall be treated for tax purposes as a Nonstatutory
Stock Option on the day three months and one day following such
termination. If, on the date of termination, the Optionee is not
vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option within
the time specified herein, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.
(d) Death of Optionee. If an Optionee dies while a Service Provider, the
Option may be exercised within such period of time as is specified in
the Option Agreement (which shall be at least six (6) months, but in
no event shall be later than the expiration of the term of such Option
as set forth in the Notice of Grant), by the Optionee's estate or by a
person who acquires the right to exercise the Option by bequest or
inheritance, but only to the extent that the Option is vested on the
date of death. In the absence of a specified time in the Option
Agreement, the Option shall remain exercisable for twelve (12) months
following the Optionee's termination. If, at the time of death, the
Optionee is not vested as to his or her entire Option, the Shares
covered by the unvested portion of the Option shall immediately revert
to the Plan. The Option may be exercised by the executor or
administrator of the Optionee's estate or, if none, by the person(s)
entitled to exercise the Option under the Optionee's will or the laws
of descent or distribution. If the Option is not so exercised within
the time specified herein, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.
(e) Buyout Provisions. The Administrator may at any time offer to buy out
for a payment in cash or Shares, an Option previously granted, based
on such terms and conditions as the Administrator shall establish and
communicate to the Optionee at the time that such offer is made.
10. Non-Transferability of Options and Stock Purchase Rights. Options and Stock
Purchase Rights may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws
of descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee.
11. Stock Purchase Rights.
(a) Rights to Purchase. Stock Purchase Rights may be issued either alone,
in addition to, or in tandem with other awards granted under the Plan
and/or cash awards made outside of the Plan. After the Administrator
determines that it will offer Stock Purchase Rights under the Plan, it
shall advise the offeree in writing or electronically of the terms,
conditions and restrictions related to the offer, including the number
of Shares that such person shall be entitled to purchase, the price to
be paid, and the time within which such person must accept such offer.
The terms of the offer shall comply in all respects with Section
260.140.42 of Title 10 of the California Code of Regulations. The
offer shall be accepted by execution of a Restricted Stock purchase
agreement in the form determined by the Administrator.
(b) Repurchase Option. Unless the Administrator determines otherwise, the
Restricted Stock purchase agreement shall grant the Company a
repurchase option exercisable upon the voluntary or involuntary
termination of the purchaser's service with the Company for any reason
(including death or disability). The purchase price for Shares
repurchased pursuant to the Restricted Stock purchase agreement shall
be the original price paid the purchaser and may be paid by
cancellation of any indebtedness of the purchaser to the Company. The
repurchase option shall lapse at such rate as the Administrator may
determine, but in no case at a rate of less than 20% per year over
five years from the date of purchase. Notwithstanding the foregoing,
any Stock Purchase Right granted to an officer, director or consultant
(as such terms are used in Section 260.140.41 of Title 10 of the
California Code of Regulations) may vest at any rate determined by the
Administrator.
(c) Other Provisions. The Restricted Stock purchase agreement shall
contain such other terms, provisions and conditions not inconsistent
with the Plan as may be determined by the Administrator in its sole
discretion.
-6-
<PAGE> 15
(d) Rights as a Shareholder. Once the Stock Purchase Right is exercised,
the purchaser shall have rights equivalent to those of a shareholder
and shall be a shareholder when his or her purchase is entered upon
the records of the duly authorized transfer agent of the Company. No
adjustment shall be made for a dividend or other right for which the
record date is prior to the date the Stock Purchase Right is
exercised, except as provided in Section 12 of the Plan.
12. Adjustments Upon Changes in Capitalization, Merger or Asset Sale.
(a) Changes in Capitalization. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock
covered by each outstanding Option or Stock Purchase Right, and the
number of shares of Common Stock which have been authorized for
issuance under the Plan but as to which no Options or Stock Purchase
Rights have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option or Stock Purchase Right,
as well as the price per share of Common Stock covered by each such
outstanding Option or Stock Purchase Right, shall be proportionately
adjusted for any increase or decrease in the number of issued shares
of Common Stock resulting from a stock split, reverse stock split,
stock dividend, combination or reclassification of the Common Stock,
or any other increase or decrease in the number of issued shares of
Common Stock effected without receipt of consideration by the Company.
The conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Board, whose determination in
that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of shares of Common Stock
subject to an Option or Stock Purchase Right.
(b) Dissolution or Liquidation. In the event of the proposed dissolution
or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such
proposed transaction. The Administrator in its discretion may provide
for an Optionee to have the right to exercise his or her Option until
fifteen (15) days prior to such transaction as to all of the Optioned
Stock covered thereby, including Shares as to which the Option would
not otherwise be exercisable. In addition, the Administrator may
provide that any repurchase right in favor of the Company applicable
to any Shares purchased upon exercise of an Option or Stock Purchase
Right shall lapse as to all such Shares, provided the proposed
dissolution or liquidation takes place at the time and in the manner
contemplated. To the extent it has not been previously exercised, an
Option or Stock Purchase Right will terminate immediately prior to the
consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the Company with or
into another corporation, or the sale of substantially all of the
assets of the Company (hereinafter, a "Change in Control"), each
outstanding Option and Stock Purchase Right shall be assumed or an
equivalent option or right substituted by the successor corporation or
a Parent or Subsidiary of the successor corporation. In the event that
the successor corporation refuses to assume or substitute for the
Option or Stock Purchase Right, the Optionee shall fully vest in and
have the right to exercise the Option or Stock Purchase Right as to
all of the Optioned Stock, including Shares as to which it would not
otherwise be vested or exercisable. If an Option or Stock Purchase
Right becomes fully vested and exercisable in lieu of assumption or
substitution upon a Change in Control, the Administrator shall notify
the Optionee in writing or electronically that the Option or Stock
Purchase Right shall be fully exercisable for a period of fifteen (15)
days from the date of such notice, and the Option or Stock Purchase
Right shall terminate upon the expiration of such period. For the
purposes of this paragraph, the Option or Stock Purchase Right shall
-7-
<PAGE> 16
be considered assumed if, following the Change in Control, the option
or right confers the right to purchase or receive, for each Share of
Optioned Stock subject to the Option or Stock Purchase Right
immediately prior to the Change in Control, the consideration (whether
stock, cash, or other securities or property) received in the Change
in Control by holders of Common Stock for each Share held on the
effective date of the transaction (and if holders were offered a
choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding Shares); provided, however,
that if such consideration received in the Change in Control is not
solely common stock of the successor corporation or its Parent, the
Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of the
Option or Stock Purchase Right, for each Share of Optioned Stock
subject to the Option or Stock Purchase Right, to be solely common
stock of the successor corporation or its Parent equal in fair market
value to the per share consideration received by holders of Common
Stock in the Change in Control.
In addition, if a holder of an Option or Stock Purchase Right ceases to be
a Service Provider as a result of a Termination Following a Change in
Control (as defined below), then (1) the Option or Stock Purchase Right, to
the extent unexercised and exercisable on the date the holder ceases to be
a Service Provider, may be exercised by the holder (or the holder's
guardian or legal representative) at any time prior to the expiration of
three (3) months (or such longer period of time as determined by the Board,
in its sole discretion) after the date of termination of Service Provider
status, but in no event later than the expiration date of the Option or
Stock Purchase Right, and (2) any unexercisable or unvested portion of the
Option or Stock Purchase Right shall be immediately exercisable and vested
in full as of the date of the termination of Service Provider status (or as
otherwise determined by the Board and set forth in the Option Agreement or
Stock Purchase Right agreement).
(d) Definitions. "Termination Following a Change in Control" shall mean
either of the following events: (i) termination of a Service Provider
by the Company or any successor corporation for any reason other than
for Cause (as defined below), which termination occurs within twelve
(12) months following a Change in Control or immediately prior to such
Change in Control; or (ii) resignation by a Service Provider for Good
Reason (as defined below) from service with the Company or any
successor corporation within twelve (12) months following a Change in
Control, which termination occurs within a reasonable period of time
following the event(s) constituting Good Reason. Notwithstanding any
provision herein to the contrary, Termination Following a Change in
Control shall not include any termination which (1) is for Cause (as
defined below); (2) is a result of death or disability; (3) is a
result of voluntary termination other than for Good Reason; or (4)
occurs prior to the effectiveness of a Change in Control (except as
otherwise provided above).
"Cause" shall mean any of the following: (1) theft, dishonesty, or
falsification of any Company or successor corporation documents or records; (2)
improper use or disclosure of Company or any successor corporation confidential
or proprietary information; (3) any action which has a detrimental effect on the
reputation or business of the Company or any successor corporation; (4) failure
or inability to perform any reasonably assigned duties, after written notice
from the Company or any successor corporation and a reasonable opportunity to
cure such failure or inability; (5) any material breach of any employment
agreement, which breach is not cured pursuant to the terms of such agreement; or
(6) conviction (including any plea of guilty or nolo contendere) of any criminal
act which impairs the ability to perform duties for the Company or any successor
corporation.
"Good Reason" shall mean any one or more of the following:
(i) any reduction by the Company or any successor corporation of the
Service Provider's base salary in excess of ten percent (10%) of
the Service Provider's base salary in effect immediately prior to
the date of the Change in Control, unless a comparable reduction
is concurrently made for all other Service Providers with
comparable responsibilities;
(ii) without the Service Provider's express written consent, the
assignment to the Service Provider of any duties, or any
limitation of responsibilities, substantially inconsistent with
the Service Provider's positions, duties, responsibilities and
status with the Company immediately prior to the date of the
Change in Control;
-8-
<PAGE> 17
(iii)without the Service Provider's express written consent, the
relocation of the Service Provider's principal place of
employment to a location outside the greater San Francisco Bay
Area; or
(iv) any failure by the Company or any successor corporation to
continue to provide the Service Provider with benefits comparable
to which the Service Provider was receiving immediately prior to
the date of the Change in Control.
13. Time of Granting Options and Stock Purchase Rights. The date of grant of an
Option or Stock Purchase Right shall, for all purposes, be the date on
which the Administrator makes the determination granting such Option or
Stock Purchase Right, or such other date as is determined by the
Administrator. Notice of the determination shall be given to each Employee,
Director or Consultant to whom an Option or Stock Purchase Right is so
granted within a reasonable time after the date of such grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time amend, alter,
suspend or terminate the Plan.
(b) Shareholder Approval. The Board shall obtain shareholder approval of
any Plan amendment to the extent necessary and desirable to comply
with Applicable Laws.
(c) Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any
Optionee, unless mutually agreed otherwise between the Optionee and
the Administrator, which agreement must be in writing and signed by
the Optionee and the Company. Termination of the Plan shall not affect
the Administrator's ability to exercise the powers granted to it
hereunder with respect to Options granted under the Plan prior to the
date of such termination.
15. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued pursuant to the exercise
of an Option unless the exercise of such Option and the issuance and
delivery of such Shares shall comply with Applicable Laws and shall be
further subject to the approval of counsel for the Company with
respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
Option, the Administrator may require the person exercising such
Option to represent and warrant at the time of any such exercise that
the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion
of counsel for the Company, such a representation is required.
16. Inability to Obtain Authority. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such
requisite authority shall not have been obtained.
17. Reservation of Shares. The Company, during the term of this Plan, shall at
all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
18. Shareholder Approval. The Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months after the date the
Plan is adopted. Such shareholder approval shall be obtained in the degree
and manner required under Applicable Laws.
19. Information to Optionees and Purchasers. The Company shall provide to each
Optionee and to each individual who acquires Shares pursuant to the Plan,
not less frequently than annually during the period such Optionee or
purchaser has one or more Options or Stock Purchase Rights outstanding,
and, in the case of an individual who acquires Shares pursuant to the Plan,
during the period such individual owns such Shares, copies of annual
financial statements. The Company shall not be required to provide such
statements to key employees whose duties in connection with the Company
assure their access to equivalent information.
-9-
<PAGE> 18
EXHIBIT 4.02
ENTERPRISELINK TECHNOLOGY CORPORATION
1999 STOCK OPTION PLAN
1. Establishment, Purpose and Term of Plan.
1.1 Establishment. This EnterpriseLink Technology Corporation 1999 Stock
Option Plan (the "Plan") is hereby established effective as of
November 12, 1999 (the "Effective Date").
1.2 Purpose. The purpose of the Plan is to advance the interests of the
Participating Company Group and its shareholders by providing an
incentive to attract, retain and reward persons performing services
for the Participating Company Group and by motivating such persons to
contribute to the growth and profitability of the Participating
Company Group.
1.3 Term of Plan. The Plan shall continue in effect until the earlier of
its termination by the Board or the date on which all of the shares of
Stock available for issuance under the Plan have been issued and all
restrictions on such shares under the terms of the Plan and the
agreements evidencing Options granted under the Plan have lapsed.
However, all Options shall be granted, if at all, within ten (10)
years from the earlier of the date the Plan is adopted by the Board or
the date the Plan is duly approved by the shareholders of the Company.
2. Definitions and Construction.
2.1 Definitions. Whenever used herein, the following terms shall have
their respective meanings set forth below:
(a) "Board" means the Board of Directors of the Company. If one or
more Committees have been appointed by the Board to administer
the Plan, "Board" also means such Committee(s).
(b) "Code" means the Internal Revenue Code of 1986, as amended, and
any applicable regulations promulgated thereunder.
(c) "Committee" means the Compensation Committee or other committee
of the Board duly appointed to administer the Plan and having
such powers as shall be specified by the Board. Unless the powers
of the Committee have been specifically limited, the Committee
shall have all of the powers of the Board granted herein,
including, without limitation, the power to amend or terminate
the Plan at any time, subject to the terms of the Plan and any
applicable limitations imposed by law.
(d) "Company" means EnterpriseLink Technology Corporation, a
California corporation, or any successor corporation thereto.
(e) "Consultant" means any person, including an advisor, engaged by a
Participating Company to render services other than as an
Employee or a Director.
(f) "Director" means a member of the Board or of the board of
directors of any other Participating Company.
(g) "Disability" means the inability of the Optionee, in the opinion
of a qualified physician acceptable to the Company, to perform
the major duties of the Optionee's position with the
Participating Company Group because of the sickness or injury of
the Optionee.
(h) "Employee" means any person treated as an employee (including an
officer or a Director who is also treated as an employee) in the
records of a Participating Company and, with respect to any
Incentive Stock Option granted to such person, who is an employee
for purposes of Section 422 of the Code; provided, however, that
neither service as a Director nor payment of a director's fee
shall be sufficient to constitute employment for purposes of the
Plan.
<PAGE> 19
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(j) "Fair Market Value" means, as of any date, the value of a share
of Stock or other property as determined by the Board, in its
discretion, or by the Company, in its discretion, if such
determination is expressly allocated to the Company herein,
subject to the following:
(i) If, on such date, the Stock is listed on a national or
regional securities exchange or market system, the Fair
Market Value of a share of Stock shall be the closing price
of a share of Stock (or the mean of the closing bid and
asked prices of a share of Stock if the Stock is so quoted
instead) as quoted on the Nasdaq National Market, The Nasdaq
SmallCap Market or such other national or regional
securities exchange or market system constituting the
primary market for the Stock, as reported in The Wall Street
Journal or such other source as the Company deems reliable.
If the relevant date does not fall on a day on which the
Stock has traded on such securities exchange or market
system, the date on which the Fair Market Value shall be
established shall be the last day on which the Stock was so
traded prior to the relevant date, or such other appropriate
day as shall be determined by the Board, in its discretion.
(ii) If, on such date, there is no public market for the Stock,
the Fair Market Value of a share of Stock shall be as
determined by the Board in good faith without regard to any
restriction other than a restriction which, by its terms,
will never lapse.
(k) "Incentive Stock Option" means an Option intended to be (as set
forth in the Option Agreement) and which qualifies as an
incentive stock option within the meaning of Section 422(b) of
the Code.
(l) "Insider" means an officer or a Director of the Company or any
other person whose transactions in Stock are subject to
Section 16 of the Exchange Act.
(m) "Nonstatutory Stock Option" means an Option not intended to be
(as set forth in the Option Agreement) or which does not qualify
as an Incentive Stock Option.
(n) "Option" means a right to purchase Stock (subject to adjustment
as provided in Section 4.2) pursuant to the terms and conditions
of the Plan. An Option may be either an Incentive Stock Option or
a Nonstatutory Stock Option.
(o) "Option Agreement" means a written agreement between the Company
and an Optionee setting forth the terms, conditions and
restrictions of the Option granted to the Optionee and any shares
acquired upon the exercise thereof.
(p) "Optionee" means a person who has been granted one or more
Options.
(q) "Parent Corporation" means any present or future "parent
corporation" of the Company, as defined in Section 424(e) of the
Code.
(r) "Participating Company" means the Company or any Parent
Corporation or Subsidiary Corporation.
(s) "Participating Company Group" means, at any point in time, all
corporations collectively which are then Participating Companies.
(t) "Rule 16b-3" means Rule 16b-3 under the Exchange Act, as amended
from time to time, or any successor rule or regulation.
(u) "Securities Act" means the Securities Act of 1933, as amended.
-2-
<PAGE> 20
(v) "Service" means an Optionee's employment or service with the
Participating Company Group, whether in the capacity of an
Employee, a Director or a Consultant. The Optionee's Service
shall not be deemed to have terminated merely because of a change
in the capacity in which the Optionee renders Service to the
Participating Company Group or a change in the Participating
Company for which the Optionee renders such Service, provided
that there is no interruption or termination of the Optionee's
Service. Furthermore, an Optionee's Service with the
Participating Company Group shall not be deemed to have
terminated if the Optionee takes any military leave, sick leave,
or other bona fide leave of absence approved by the Company;
provided, however, that if any such leave exceeds ninety (90)
days, on the ninety-first (91st) day of such leave the Optionee's
Service shall be deemed to have terminated unless the Optionee's
right to return to Service with the Participating Company Group
is guaranteed by statute or contract. Notwithstanding the
foregoing, unless otherwise designated by the Company or required
by law, a leave of absence shall not be treated as Service for
purposes of determining vesting under the Optionee's Option
Agreement. The Optionee's Service shall be deemed to have
terminated either upon an actual termination of Service or upon
the corporation for which the Optionee performs Service ceasing
to be a Participating Company. Subject to the foregoing, the
Company, in its discretion, shall determine whether the
Optionee's Service has terminated and the effective date of such
termination.
(w) "Stock" means the common stock of the Company, as adjusted from
time to time in accordance with Section 4.2.
(x) "Subsidiary Corporation" means any present or future "subsidiary
corporation" of the Company, as defined in Section 424(f) of the
Code.
(y) "Ten Percent Owner Optionee" means an Optionee who, at the time
an Option is granted to the Optionee, owns stock possessing more
than ten percent (10%) of the total combined voting power of all
classes of stock of a Participating Company within the meaning of
Section 422(b)(6) of the Code.
1.2 Construction. Captions and titles contained herein are for convenience
only and shall not affect the meaning or interpretation of any
provision of the Plan. Except when otherwise indicated by the context,
the singular shall include the plural and the plural shall include the
singular. Use of the term "or" is not intended to be exclusive, unless
the context clearly requires otherwise.
2. Administration.
2.1 Administration by the Board. The Plan shall be administered by the
Board. All questions of interpretation of the Plan or of any Option
shall be determined by the Board, and such determinations shall be
final and binding upon all persons having an interest in the Plan or
such Option.
2.2 Authority of Officers. Any officer of a Participating Company shall
have the authority to act on behalf of the Company with respect to any
matter, right, obligation, determination or election which is the
responsibility of or which is allocated to the Company herein,
provided the officer has apparent authority with respect to such
matter, right, obligation, determination or election.
2.3 Administration with Respect to Insiders. With respect to participation
by Insiders in the Plan, at any time that any class of equity security
of the Company is registered pursuant to Section 12 of the Exchange
Act, the Plan shall be administered in compliance with the
requirements, if any, of Rule 16b-3.
2.4 Powers of the Board. In addition to any other powers set forth in the
Plan and subject to the provisions of the Plan, the Board shall have
the full and final power and authority, in its discretion:
-3-
<PAGE> 21
(a) to determine the persons to whom, and the time or times at which,
Options shall be granted and the number of shares of Stock to be
subject to each Option;
(b) to designate Options as Incentive Stock Options or Nonstatutory
Stock Options;
(c) to determine the Fair Market Value of shares of Stock or other
property;
(d) to determine the terms, conditions and restrictions applicable to
each Option (which need not be identical) and any shares acquired
upon the exercise thereof, including, without limitation, (i) the
exercise price of the Option, (ii) the method of payment for
shares purchased upon the exercise of the Option, (iii) the
method for satisfaction of any tax withholding obligation arising
in connection with the Option or such shares, including by the
withholding or delivery of shares of stock, (iv) the timing,
terms and conditions of the exercisability of the Option or the
vesting of any shares acquired upon the exercise thereof, (v) the
time of the expiration of the Option, (vi) the effect of the
Optionee's termination of Service with the Participating Company
Group on any of the foregoing, and (vii) all other terms,
conditions and restrictions applicable to the Option or such
shares not inconsistent with the terms of the Plan;
(e) to approve one or more forms of Option Agreement;
(f) to amend, modify, extend, cancel, renew, reprice or otherwise
adjust the exercise price of, or grant a new Option in
substitution for, any Option or to waive any restrictions or
conditions applicable to any Option or any shares acquired upon
the exercise thereof;
(g) to accelerate, continue, extend or defer the exercisability of
any Option or the vesting of any shares acquired upon the
exercise thereof, including with respect to the period following
an Optionee's termination of Service with the Participating
Company Group;
(h) to prescribe, amend or rescind rules, guidelines and policies
relating to the Plan, or to adopt supplements to, or alternative
versions of, the Plan, including, without limitation, as the
Board deems necessary or desirable to comply with the laws of, or
to accommodate the tax policy or custom of, foreign jurisdictions
whose citizens may be granted Options; and
(i) to correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Option Agreement and to make all
other determinations and take such other actions with respect to
the Plan or any Option as the Board may deem advisable to the
extent consistent with the Plan and applicable law.
3. Shares Subject to Plan.
3.1 Maximum Number of Shares Issuable. Subject to adjustment as provided
in Section 4.2, the maximum aggregate number of shares of Stock that
may be issued under the Plan shall be one million two hundred and
fifty thousand (1,250,000) and shall consist of authorized but
unissued or reacquired shares of Stock or any combination thereof. If
an outstanding Option for any reason expires or is terminated or
canceled or if shares of Stock are acquired upon the exercise of an
Option subject to a Company repurchase option and are repurchased by
the Company at the Optionee's exercise price, the shares of Stock
allocable to the unexercised portion of such Option or such
repurchased shares of Stock shall again be available for issuance
under the Plan. Notwithstanding the foregoing, at any such time as the
offer and sale of securities pursuant to the Plan is subject to
compliance with Section 260.140.45 of Title 10 of the California Code
of Regulations ("Section 260.140.45"), the total number of shares of
Stock issuable upon the exercise of all outstanding Options (together
with options outstanding under any other stock option plan of the
Company) and the total number of shares provided for under any stock
bonus or similar plan of the Company shall not exceed thirty percent
-4-
<PAGE> 22
(30%) (or such other higher percentage limitation as may be approved
by the shareholders of the Company pursuant to Section 260.140.45) of
the then outstanding shares of the Company as calculated in accordance
with the conditions and exclusions of Section 260.140.45.
3.2 Adjustments for Changes in Capital Structure. In the event of any
stock dividend, stock split, reverse stock split, recapitalization,
combination, reclassification or similar change in the capital
structure of the Company, appropriate adjustments shall be made in the
number and class of shares subject to the Plan and to any outstanding
Options and in the exercise price per share of any outstanding
Options. If a majority of the shares which are of the same class as
the shares that are subject to outstanding Options are exchanged for,
converted into, or otherwise become (whether or not pursuant to an
Ownership Change Event, as defined in Section 8.1) shares of another
corporation (the "New Shares"), the Board may unilaterally amend the
outstanding Options to provide that such Options are exercisable for
New Shares. In the event of any such amendment, the number of shares
subject to, and the exercise price per share of, the outstanding
Options shall be adjusted in a fair and equitable manner as determined
by the Board, in its discretion. Notwithstanding the foregoing, any
fractional share resulting from an adjustment pursuant to this
Section 4.2 shall be rounded down to the nearest whole number, and in
no event may the exercise price of any Option be decreased to an
amount less than the par value, if any, of the stock subject to the
Option. The adjustments determined by the Board pursuant to this
Section 4.2 shall be final, binding and conclusive.
4. Eligibility and Option Limitations.
4.1 Persons Eligible for Options. Options may be granted only to
Employees, Consultants, and Directors. For purposes of the foregoing
sentence, "Employees," "Consultants" and "Directors" shall include
prospective Employees, prospective Consultants and prospective
Directors to whom Options are granted in connection with written
offers of an employment or other service relationships with the
Participating Company Group. Eligible persons may be granted more than
one (1) Option.
4.2 Option Grant Restrictions. Any person who is not an Employee on the
effective date of the grant of an Option to such person may be granted
only a Nonstatutory Stock Option. An Incentive Stock Option granted to
a prospective Employee upon the condition that such person become an
Employee shall be deemed granted effective on the date such person
commences Service with a Participating Company, with an exercise price
determined as of such date in accordance with Section 6.1.
4.3 Fair Market Value Limitation. To the extent that options designated as
Incentive Stock Options (granted under all stock option plans of the
Participating Company Group, including the Plan) become exercisable by
an Optionee for the first time during any calendar year for stock
having a Fair Market Value greater than One Hundred Thousand Dollars
($100,000), the portions of such options which exceed such amount
shall be treated as Nonstatutory Stock Options. For purposes of this
Section 5.3, options designated as Incentive Stock Options shall be
taken into account in the order in which they were granted, and the
Fair Market Value of stock shall be determined as of the time the
option with respect to such stock is granted. If the Code is amended
to provide for a different limitation from that set forth in this
Section 5.3, such different limitation shall be deemed incorporated
herein effective as of the date and with respect to such Options as
required or permitted by such amendment to the Code. If an Option is
treated as an Incentive Stock Option in part and as a Nonstatutory
Stock Option in part by reason of the limitation set forth in this
Section 5.3, the Optionee may designate which portion of such Option
the Optionee is exercising. In the absence of such designation, the
Optionee shall be deemed to have exercised the Incentive Stock Option
portion of the Option first. Separate certificates representing each
such portion shall be issued upon the exercise of the Option.
-5-
<PAGE> 23
5. Terms and Conditions of Options.
Options shall be evidenced by Option Agreements specifying the number of
shares of Stock covered thereby, in such form as the Board shall from time
to time establish. No Option or purported Option shall be a valid and
binding obligation of the Company unless evidenced by a fully executed
Option Agreement. Option Agreements may incorporate all or any of the terms
of the Plan by reference and shall comply with and be subject to the
following terms and conditions:
5.1 Exercise Price. The exercise price for each Option shall be
established in the discretion of the Board; provided, however, that
(a) the exercise price per share for an Incentive Stock Option shall
be not less than the Fair Market Value of a share of Stock on the
effective date of grant of the Option, (b) the exercise price per
share for a Nonstatutory Stock Option shall be not less than
eighty-five percent (85%) of the Fair Market Value of a share of Stock
on the effective date of grant of the Option, and (c) no Option
granted to a Ten Percent Owner Optionee shall have an exercise price
per share less than one hundred ten percent (110%) of the Fair Market
Value of a share of Stock on the effective date of grant of the
Option. Notwithstanding the foregoing, an Option (whether an Incentive
Stock Option or a Nonstatutory Stock Option) may be granted with an
exercise price lower than the minimum exercise price set forth above
if such Option is granted pursuant to an assumption or substitution
for another option in a manner qualifying under the provisions of
Section 424(a) of the Code.
5.2 Exercise Period. Options shall be exercisable at such time or times,
or upon such event or events, and subject to such terms, conditions,
performance criteria, and restrictions as shall be determined by the
Board and set forth in the Option Agreement evidencing such Option;
provided, however, that (a) no Option shall be exercisable after the
expiration of ten (10) years after the effective date of grant of such
Option, (b) no Incentive Stock Option granted to a Ten Percent Owner
Optionee shall be exercisable after the expiration of five (5) years
after the effective date of grant of such Option, (c) no Option
granted to a prospective Employee, prospective Consultant or
prospective Director may become exercisable prior to the date on which
such person commences Service with a Participating Company, and (d)
with the exception of an Option granted to an officer, Director or
Consultant, no Option shall become exercisable at a rate less than
twenty percent (20%) per year over a period of five (5) years from the
effective date of grant of such Option, subject to the Optionee's
continued Service. Subject to the foregoing, unless otherwise
specified by the Board in the grant of an Option, any Option granted
hereunder shall have a term of ten (10) years from the effective date
of grant of the Option.
5.3 Payment of Exercise Price.
(a) Forms of Consideration Authorized. Except as otherwise provided
below, payment of the exercise price for the number of shares of
Stock being purchased pursuant to any Option shall be made
(i) in cash, by check or cash equivalent,
(ii) by such other consideration as may be approved by the Board from
time to time to the extent permitted by applicable law, or
(iii)by any combination thereof. The Board may at any time or from
time to time, by adoption of or by amendment to the standard
forms of Option Agreement described in Section 7, or by other
means, grant Options which do not permit all of the foregoing
forms of consideration to be used in payment of the exercise
price or which otherwise restrict one or more forms of
consideration.
5.4 Tax Withholding. The Company shall have the right, but not the
obligation, to deduct from the shares of Stock issuable upon the
exercise of an Option, or to accept from the Optionee the tender of, a
number of whole shares of Stock having a Fair Market Value, as
determined by the Company, equal to all or any part of the federal,
state, local and foreign taxes, if any, required by law to be withheld
by the Participating Company Group with respect to such Option or the
shares acquired upon the exercise thereof. Alternatively or in
addition, in its discretion, the Company shall have the right to
require the Optionee, through payroll withholding, cash payment or
otherwise, including by means of a Cashless Exercise, to make adequate
-6-
<PAGE> 24
provision for any such tax withholding obligations of the
Participating Company Group arising in connection with the Option or
the shares acquired upon the exercise thereof. The Company shall have
no obligation to deliver shares of Stock or to release shares of Stock
from an escrow established pursuant to the Option Agreement until the
Participating Company Group's tax withholding obligations have been
satisfied by the Optionee.
5.5 Effect of Termination of Service.
(a) Option Exercisability. Subject to earlier termination of the
Option as otherwise provided herein, an Option shall be
exercisable after an Optionee's termination of Service as
follows:
(i) Disability. If the Optionee's Service with the Participating
Company Group is terminated because of the Disability of the
Optionee, the Option, to the extent unexercised and
exercisable on the date on which the Optionee's Service
terminated, may be exercised by the Optionee (or the
Optionee's guardian or legal representative) at any time
prior to the expiration of six (6) months (or such longer
period of time as determined by the Board, in its
discretion) after the date on which the Optionee's Service
terminated, but in any event no later than the date of
expiration of the Option's term as set forth in the Option
Agreement evidencing such Option (the "Option Expiration
Date").
(ii) Death. If the Optionee's Service with the Participating
Company Group is terminated because of the death of the
Optionee, the Option, to the extent unexercised and
exercisable on the date on which the Optionee's Service
terminated, may be exercised by the Optionee's legal
representative or other person who acquired the right to
exercise the Option by reason of the Optionee's death at any
time prior to the expiration of six (6) months (or such
longer period of time as determined by the Board, in its
discretion) after the date on which the Optionee's Service
terminated, but in any event no later than the Option
Expiration Date. The Optionee's Service shall be deemed to
have terminated on account of death if the Optionee dies
within thirty (30) days (or such longer period of time as
determined by the Board, in its discretion) after the
Optionee's termination of Service.
(iii)Other Termination of Service. If the Optionee's Service with
the Participating Company Group terminates for any reason,
except Disability or death, the Option, to the extent
unexercised and exercisable by the Optionee on the date on
which the Optionee's Service terminated, may be exercised by
the Optionee within thirty (30) days (or such longer period
of time as determined by the Board, in its discretion) after
the date on which the Optionee's Service terminated, but in
any event no later than the Option Expiration Date.
(b) Extension if Exercise Prevented by Law. Notwithstanding the
foregoing, if the exercise of an Option within the applicable
time periods set forth in Section 6.5(a) is prevented by the
provisions of Section 11 below, the Option shall remain
exercisable until thirty (30) days (or such longer period of time
as determined by the Board, in its discretion) after the date the
Optionee is notified by the Company that the Option is
exercisable, but in any event no later than the Option Expiration
Date.
(c) Extension if Optionee Subject to Section 16(b). Notwithstanding
the foregoing, if a sale within the applicable time periods set
forth in Section 6.5(a) of shares acquired upon the exercise of
the Option would subject the Optionee to suit under Section 16(b)
of the Exchange Act, the Option shall remain exercisable until
the earliest to occur of (i) the tenth (10th) day following the
date on which a sale of such shares by the Optionee would no
longer be subject to such suit, (ii) the one hundred and
ninetieth (190th) day after the Optionee's termination of
Service, or (iii) the Option Expiration Date.
-7-
<PAGE> 25
6. Standard Forms of Option Agreement.
6.1 Incentive Stock Options. Unless otherwise provided by the Board at the
time the Option is granted, an Option designated as an "Incentive
Stock Option" shall comply with and be subject to the terms and
conditions set forth in the form of Incentive Stock Option Agreement
adopted by the Board concurrently with its adoption of the Plan and as
amended from time to time.
6.2 Nonstatutory Stock Options. Unless otherwise provided by the Board at
the time the Option is granted, an Option designated as a
"Nonstatutory Stock Option" shall comply with and be subject to the
terms and conditions set forth in the form of Nonstatutory Stock
Option Agreement adopted by the Board concurrently with its adoption
of the Plan and as amended from time to time.
6.3 Authority to Vary Terms. The Board shall have the authority from time
to time to vary the terms of any of the standard forms of Option
Agreement described in this Section 7 either in connection with the
grant or amendment of an individual Option or in connection with the
authorization of a new standard form or forms; provided, however, that
the terms and conditions of any such new, revised or amended standard
form or forms of Option Agreement are not inconsistent with the terms
of the Plan.
7. Change in Control.
7.1 Definitions.
(a) An "Ownership Change Event" shall be deemed to have occurred if
any of the following occurs with respect to the Company: (i) the
direct or indirect sale or exchange in a single or series of
related transactions by the shareholders of the Company of more
than fifty percent (50%) of the voting stock of the Company; (ii)
a merger or consolidation in which the Company is a party; (iii)
the sale, exchange, or transfer of all or substantially all of
the assets of the Company; or (iv) a liquidation or dissolution
of the Company.
(b) A "Change in Control" shall mean an Ownership Change Event or a
series of related Ownership Change Events (collectively, a
"Transaction") wherein the shareholders of the Company
immediately before the Transaction do not retain immediately
after the Transaction, in substantially the same proportions as
their ownership of shares of the Company's voting stock
immediately before the Transaction, direct or indirect beneficial
ownership of more than fifty percent (50%) of the total combined
voting power of the outstanding voting stock of the Company or
the corporation or corporations to which the assets of the
Company were transferred (the "Transferee Corporation(s)"), as
the case may be. For purposes of the preceding sentence, indirect
beneficial ownership shall include, without limitation, an
interest resulting from ownership of the voting stock of one or
more corporations which, as a result of the Transaction, own the
Company or the Transferee Corporation(s), as the case may be,
either directly or through one or more subsidiary corporations.
The Board shall have the right to determine whether multiple
sales or exchanges of the voting stock of the Company or multiple
Ownership Change Events are related, and its determination shall
be final, binding and conclusive.
7.2 Effect of Change in Control on Options. In the event of a Change in
Control, the surviving, continuing, successor, or purchasing
corporation or parent corporation thereof, as the case may be (the
"Acquiring Corporation"), may either assume the Company's rights and
obligations under outstanding Options or substitute for outstanding
Options substantially equivalent options for the Acquiring
Corporation's stock. For purposes of this Section 8.2, an Option shall
be deemed assumed if, following the Change in Control, the Option
confers the right to purchase in accordance with its terms and
conditions, for each share of Stock subject to the Option immediately
prior to the Change in Control, the consideration (whether stock, cash
-8-
<PAGE> 26
or other securities or property) to which a holder of a share of Stock
on the effective date of the Change in Control was entitled. In the
event the Acquiring Corporation elects not to assume or substitute for
outstanding Options in connection with a Change in Control, any
unexercisable or unvested portions of outstanding Options held by
Optionees whose Service has not terminated prior to such date shall
become immediately exercisable and vested in full (and any unvested
share repurchase option shall lapse) as of the date ten (10) days
prior to the date of the Change in Control. The accelerated exercise
or vesting of any Option that was permissible solely by reason of this
Section 8.2 shall be conditioned upon the consummation of the Change
in Control. Any Options which are neither assumed or substituted for
by the Acquiring Corporation in connection with the Change in Control
nor exercised as of the date of the Change in Control shall terminate
and cease to be outstanding effective as of the date of the Change in
Control. Notwithstanding the foregoing, shares acquired upon exercise
of an Option prior to the Change in Control and any consideration
received pursuant to the Change in Control with respect to such shares
shall continue to be subject to all applicable provisions of the
Option Agreement evidencing such Option except as otherwise provided
in such Option Agreement. Furthermore, notwithstanding the foregoing,
if the corporation the stock of which is subject to the outstanding
Options immediately prior to an Ownership Change Event described in
Section 8.1(a)(i) constituting a Change in Control is the surviving or
continuing corporation and immediately after such Ownership Change
Event less than fifty percent (50%) of the total combined voting power
of its voting stock is held by another corporation or by other
corporations that are members of an affiliated group within the
meaning of Section 1504(a) of the Code without regard to the
provisions of Section 1504(b) of the Code, the outstanding Options
shall not terminate unless the Board otherwise provides in its
discretion.
8. Provision of Information.
At least annually, copies of the Company's balance sheet and income
statement for the just completed fiscal year shall be made available to each
Optionee and purchaser of shares of Stock upon the exercise of an Option. The
Company shall not be required to provide such information to key employees whose
duties in connection with the Company assure them access to equivalent
information.
9. Nontransferability of Options.
During the lifetime of the Optionee, an Option shall be exercisable only by
the Optionee or the Optionee's guardian or legal representative. No Option shall
be assignable or transferable by the Optionee, except by will or by the laws of
descent and distribution.
10. Compliance with Securities Law.
The grant of Options and the issuance of shares of Stock upon exercise of
Options shall be subject to compliance with all applicable requirements of
federal, state and foreign law with respect to such securities. Options may not
be exercised if the issuance of shares of Stock upon exercise would constitute a
violation of any applicable federal, state or foreign securities laws or other
law or regulations or the requirements of any stock exchange or market system
upon which the Stock may then be listed. In addition, no Option may be exercised
unless (a) a registration statement under the Securities Act shall at the time
of exercise of the Option be in effect with respect to the shares issuable upon
exercise of the Option or (b) in the opinion of legal counsel to the Company,
the shares issuable upon exercise of the Option may be issued in accordance with
the terms of an applicable exemption from the registration requirements of the
Securities Act. The inability of the Company to obtain from any regulatory body
having jurisdiction the authority, if any, deemed by the Company's legal counsel
to be necessary to the lawful issuance and sale of any shares hereunder shall
relieve the Company of any liability in respect of the failure to issue or sell
such shares as to which such requisite authority shall not have been obtained.
As a condition to the exercise of any Option, the Company may require the
Optionee to satisfy any qualifications that may be necessary or appropriate, to
evidence compliance with any applicable law or regulation and to make any
representation or warranty with respect thereto as may be requested by the
Company.
-9-
<PAGE> 27
11. Indemnification.
In addition to such other rights of indemnification as they may have as
members of the Board or officers or employees of the Participating Company
Group, members of the Board and any officers or employees of the Participating
Company Group to whom authority to act for the Board or the Company is delegated
shall be indemnified by the Company against all reasonable expenses, including
attorneys' fees, actually and necessarily incurred in connection with the
defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan, or any right
granted hereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Company) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such person is liable for gross
negligence, bad faith or intentional misconduct in duties; provided, however,
that within sixty (60) days after the institution of such action, suit or
proceeding, such person shall offer to the Company, in writing, the opportunity
at its own expense to handle and defend the same.
12. Termination or Amendment of Plan.
The Board may terminate or amend the Plan at any time. However, subject to
changes in applicable law, regulations or rules that would permit otherwise,
without the approval of the Company's shareholders, there shall be (a) no
increase in the maximum aggregate number of shares of Stock that may be issued
under the Plan (except by operation of the provisions of Section 4.2), (b) no
change in the class of persons eligible to receive Incentive Stock Options, and
(c) no other amendment of the Plan that would require approval of the Company's
shareholders under any applicable law, regulation or rule. In any event, no
termination or amendment of the Plan may adversely affect any then outstanding
Option or any unexercised portion thereof, without the consent of the Optionee,
unless such termination or amendment is required to enable an Option designated
as an Incentive Stock Option to qualify as an Incentive Stock Option or is
necessary to comply with any applicable law, regulation or rule.
13. Shareholder Approval.
The Plan or any increase in the maximum aggregate number of shares of Stock
issuable thereunder as provided in Section 4.1 (the "Authorized Shares") shall
be approved by the shareholders of the Company within twelve (12) months of the
date of adoption thereof by the Board. Options granted prior to shareholder
approval of the Plan or in excess of the Authorized Shares previously approved
by the shareholders shall become exercisable no earlier than the date of
shareholder approval of the Plan or such increase in the Authorized Shares, as
the case may be.
-10-
<PAGE> 28
EXHIBIT 5.01
14 December 1999
MERANT plc MEMERY CRYSTAL
The Lawn Solicitors
22-30 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 5905
Group 4 Fax: +44(0) 171-242 5905
Dear Sirs
Registration Statement on Form S-8
1. This opinion is given in connection with the registration under the U.S.
Securities Act of 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 MERANT plc ("the Company"), which may be issued pursuant
to the EnterpriseLink Technology Corporation ("EnterpriseLink") 1996 Stock
Plan, as amended ("the 1996 Plan"), the EnterpriseLink 1999 Stock Plan, as
amended ("the 1999 Plan"), the Company having assumed the responsibilities
of EnterpriseLink under the 1996 Plan and the 1999 Plan on its acquisition
of the stock of EnterpriseLink in November 1999, and shares which may be
allocated by the trustee pursuant to the MERANT plc 1994 Employee Benefit
Trust (the "1994 Employee Benefit Trust").
2. We have acted as English legal advisors 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.
4. You have confirmed to us that all necessary proceedings have been taken in
connection with the adoption by the Company of the 1996 Plan, the 1999 Plan
and the 1994 Employee Benefit Trust, 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
options granted or to be granted under the 1996 Plan and the 1999 Plan and
that may be allocated under the 1994 Employee Benefit Trust when issued or
allocated (as the case may be) in accordance with the applicable plan or
scheme and options or purchase rights duly granted thereunder and the
Company's Memorandum and Articles of Association, and in the manner
referred to in the relevant prospectus associated with the Registration
Statement S-8 to be filed by the Company on or around 14 December 1999
("the Registration Statement") will be legally issued or allocated (as the
case may be), 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
<PAGE> 29
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
-2-
<PAGE> 30
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 and employee benefit trust named on
the facing sheet thereof of our report dated August 4, 1999, with respect to the
consolidated financial statements of MERANT plc for the year ended April 30,
1999 included in its Annual Report (Form 20-F).
Reading, England
December 10, 1999
<PAGE> 31
EXHIBIT 23.03
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated June 17, 1998 relating to the
financial statements of Intersolv, Inc., which appears in MERANT plc's Annual
Report on Form 20-F for the year ended April 30, 1999.
PricewaterhouseCoopers LLP
McLean, Virginia
December 14, 1999
