<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 27, 1998
REGISTRATION NO. 333-47021
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
ARDENT SOFTWARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 50 WASHINGTON STREET NO. 04-2818132
(STATE OR OTHER JURISDICTION OF WESTBORO, MASSACHUSETTS 01581-1021 (L.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) (508) 366-3888 IDENTIFICATION NO.)
</TABLE>
PETER GYENES
Ardent Software, Inc.
50 Washington Street
Westboro, Massachusetts 01581-1021
(508) 366-3888
(Name, Address and Telephone Number of Agent for Service)
Copy to:
<TABLE>
<S> <C>
JAMES K. WALSH, ESQ. RICHARD N. HOEHN, ESQ.
ARDENT SOFTWARE, INC. CHOATE, HALL & STEWART
50 WASHINGTON STREET EXCHANGE PLACE, 53 STATE STREET
WESTBORO, MA 01581-1021 BOSTON, MA 02109
(508) 366-3888 (617) 248-5000
</TABLE>
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
================================================================================
<PAGE> 2
PROSPECTUS
- ----------
25,467 SHARES
ARDENT SOFTWARE, INC.
COMMON STOCK
The Prospectus relates to the resale of up to 25,467 shares (the "Shares")
of Common Stock, $.01 par value per share, of Ardent Software, Inc. (the
"Company") held by certain stockholders of the Company (the "Selling
Stockholders").
---------------------------------
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. FOR A
DISCUSSION OF CERTAIN FACTORS WHICH SHOULD BE CONSIDERED IN CONNECTION WITH THE
PURCHASE OF THESE SECURITIES, SEE "RISK FACTORS" BEGINNING ON PAGE 4.
---------------------------------
The Selling Stockholders and their agents, donees, distributees, pledgees
and other successors in interest may offer and sell the Shares from time to time
in one or more transactions on The Nasdaq Stock Market, or otherwise, at market
prices then prevailing or in negotiated transactions. The Shares may also be
sold pursuant to option, hedging or other transactions with broker-dealers. The
Shares may also be offered in one or more underwritten offerings. The
underwriters in an underwritten offering, if any, and the terms and conditions
of any such offering will be described in a supplement to this Prospectus. See
"Selling Stockholders" and "Plan of Distribution."
The Company will not receive any of the proceeds from the sale of the
Shares by the Selling Stockholders. See "Use of Proceeds".
The Common Stock of the Company is traded on the National Market of The
Nasdaq Stock Market (the "Nasdaq National Market") under the symbol "ARDT". On
February 26, 1998, the last reported sale price of Common Stock on the Nasdaq
National Market was $10.375 per share.
---------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------------------
The date of this Prospectus is February 27, 1998.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission
pursuant to the informational requirements of the Exchange Act may be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional
offices located at Seven World Trade Center, 13th Floor, New York, New York
10048, and at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such materials also may be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Such material may also be obtained
from the Commission's web site at http://www.sec.gov. The Common Stock of the
Company is traded on the Nasdaq National Market. Reports, proxy statements and
other information concerning the Company also may be inspected at the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Common Stock offered hereby. This Prospectus does not contain all
of the information set forth in the Registration Statement and the exhibits and
schedules filed therewith. For further information with respect to the Company
and the Common Stock offered hereby, reference is hereby made to such
Registration Statement and to the exhibits and schedules filed therewith.
Statements contained in this Prospectus regarding the contents of any agreement
or other document are not necessarily complete, and in each instance reference
is made to the copy of such agreement or document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference. The Registration Statement, including the exhibits and schedules
thereto, may be inspected without charge at the principal office of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of all or
any part thereof may be obtained from such office upon payment of the prescribed
fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
0-20059) are incorporated herein by reference: (1) the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1996; (2) the Company's
interim reports on Form 10-Q for the fiscal quarters ended March 30, 1997, June
29, 1997 and September 28, 1997; (3) the Company's S-4 registration statement
relating to securities issued pursuant to the merger of Unidata, Inc. with and
into the Company, filed with the Commission on December 31, 1997; (4) the
description of the Company's Common Stock contained in the Company's
registration statement on Form 8-A filed with the Commission on April 8, 1992,
including any amendments or reports filed for the purpose of updating such
description; (5) the description of the Company's Junior Preferred Stock
Purchase Rights attached to each share of the Company's Common Stock contained
in the Company's registration statement on Form 8-A filed with the Commission on
July 29, 1996, including any amendments or reports filed for the purpose of
updating such description and (6) the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1997.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date hereof and prior to the termination of the offering of the Common Stock
registered hereby shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statements contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus. The Company will provide without charge
to each person to whom this Prospectus is delivered, upon a written request of
such person, a copy of any or all of the foregoing documents incorporated by
reference into this Prospectus (other than exhibits to such
2
<PAGE> 4
documents, unless such exhibits are specifically incorporated by reference into
such documents). Requests for such copies should be directed to the General
Counsel of the Company at 50 Washington Street, Westboro, Massachusetts 01581,
(508) 366-3888.
THE COMPANY
The Company's principal executive offices are located at 50 Washington
Street, Westboro, Massachusetts 01581, and its telephone number is (508)
366-3888. The Company was incorporated in Delaware in 1984.
---------------------------------
3
<PAGE> 5
RISK FACTORS
In addition to the other information contained in this Prospectus, the
following factors should be considered carefully in evaluating an investment in
the Common Stock offered by this Prospectus. In particular, potential investors
are advised that statements contained herein or incorporated by reference into
this Prospectus expressing the beliefs and expectations of management regarding
the Company's future results or performance are forward looking statements based
on current expectations that involve a number of risks and uncertainties. The
following factors describe certain market risks associated with an investment in
the Common Stock and various of the risks and uncertainties which could cause
actual results to differ materially from management expectations.
Integration of Operations; Transaction Costs. The Company is the result of
the February 10, 1998 merger between VMARK Software, Inc. (VMARK) and Unidata,
Inc. (UNIDATA), and the integration of those two companies is currently ongoing.
The Company cannot guarantee that the integration of VMARK and UNIDATA will be
completed in a manner that is efficient, effective and timely enough to achieve
the anticipated benefits of the merger. Integrating the two companies will
require the timely combination of management, sales and marketing and research
and development teams that are in different geographic locations. Integration of
the companies also will require the combination of complex software technology,
product lines and software development plans. Additionally, the time-consuming
task of integrating the two companies may distract attention from the day-to-day
business of the Company.
Concentration of Ownership. James T. Dresher owns beneficially
approximately 21% of the outstanding common stock of the Company. Such
concentration of ownership gives Mr. Dresher substantial power to affect the
outcome of the election of directors and other matters requiring a stockholder
vote and, in addition, may have the effect of delaying or preventing a change in
control of the Company.
Need to Develop New Products and Adapt to Technological Change.
Technological developments, customer requirements and industry standards change
frequently in the computer software database market. As a result, the Company's
success will depend upon its ability to enhance current products and to develop
or acquire new products which meet customer needs and comply with industry
standards. The possibility exists that the Company's products will be rendered
obsolete by technological advances, or that the Company will not be able to
develop and market the products required to continue to be competitive. Certain
of the Company's planned products are in various stages of development. It is
possible that such products will prove not to be commercially viable or that the
Company will experience operational problems with such products after commercial
introduction that could delay or defeat the ability of such products to generate
revenue. The products to which the Company intends to devote substantial
resources in the foreseeable future are object oriented database products and
data warehousing and datamart products. There is no assurance that products in
either of these two areas will be commercially successful. In particular, object
technology requires customers to make a substantial investment in retraining
application programmers. Several companies have failed in attempts to introduce
object technology and there is no assurance that such technology will gain
widespread customer acceptance. VMARK and UNIDATA experienced product delays and
undetected errors or bugs in their products in the past and the Company may
experience such problems in the future. The Company's success will also depend
on the ability of its products to interoperate and perform well with existing
and future industry-standard leading application software products intended to
be used in connection with relational database management systems.
Substantial Competition. The Company faces intense competition in the
market for database management systems and related software from many companies
which offer alternative solutions to the needs addressed by our products and
services. Many of the Company's direct competitors, such as Oracle Corporation,
Sybase, Inc. and Informix Software, Inc., as well as other large computer
software companies that could compete directly against the Company in the
future, have far greater resources than the Company. The Company's competitors
also may be able to adapt more quickly to new or emerging technologies and
standards or changes in customer requirements or devote greater resources to the
promotion and sale of their products. Several of the Company's competitors
already have announced plans to develop new technology that will compete with
the object database and data warehousing technology that will constitute the
core of the
4
<PAGE> 6
Company's new product development efforts. There can be no assurance that the
Company will be able to compete successfully in its markets against such
competitors.
Litigation. The Company is a defendant in litigation with certain
stockholders who allege that members of VMARK's management made certain untrue
statements and failed to disclose information regarding VMARK's prospective
financial performance in violation of federal law. The Company also is a party
to a lawsuit brought by one of UNIDATA's licensees which claims that UNIDATA
violated such licensee's purported exclusive license to certain UNIDATA products
in Asia. The Company denies the allegations against it, as successor to VMARK
and UNIDATA, and intends to vigorously contest these lawsuits. Nonetheless, it
is possible that one or both of these matters could subject the Company to
substantial liability and thereby adversely affect the Company's financial
performance.
Dependence on Key Personnel; Ability to Attract and Retain Qualified
Personnel. The Company's business is led by a number of key, highly skilled
technical, managerial and marketing personnel, the loss of which could adversely
affect the Company. Competition for such personnel in the software industry is
intense. The success of the Company will depend in large part upon its ability
to hire and retain such personnel.
Volatility of Stock Prices and Fluctuations in Quarterly Results. The
market price of VMARK common stock has been, and the market price of the
Company's common stock after the merger of VMARK and UNIDATA may continue to be,
highly volatile. Factors that are difficult to predict such as quarterly
revenue, statements and ratings by financial analysts and overall market
performance will have a significant impact on the price for shares of the
Company's common stock. Future sales of large amounts of the Company's common
stock also could adversely affect the stock price. Except for long-term service
and maintenance contracts, the Company operates with an insignificant backlog of
orders and the bulk of customer purchase orders are received at the end of
quarterly periods, especially at the end of the year. As a result, operating
results can vary substantially from period to period and the results of
individual quarters are extremely uncertain.
Risks Associated with International Operations. Fluctuations in foreign
currency prices relative to the United States dollar could reduce a substantial
portion of the Company's total revenue expected to come from international
operations. 24% of UNIDATA's revenues for the nine months ended September 30,
1997 and 37% of VMARK's revenues for the nine month period ended September 28,
1997 were derived from sales outside the United States. If exchange or price
controls or other restrictions on the conversion of foreign currencies are
imposed, the Company's business could be adversely affected. Other potential
risks inherent in the Company's international business generally will include
longer payment cycles, greater difficulties in collecting accounts receivable,
the burdens of complying with a wide variety of foreign laws and regulations,
political uncertainties and differences in business practices.
Protection of Intellectual Property Rights. The Company regards certain of
its technologies as proprietary and relies on a combination of copyright,
trademark and trade secret laws and contractual provisions to establish and
protect its proprietary rights. These steps may not be sufficient to prevent or
deter others from copying or stealing the Company's proprietary rights and do
not prevent competitors from independently developing technology that is
equivalent or superior to the Company's technology. In addition, while the
Company does not believe that its products, trademarks or other proprietary
rights infringe upon the proprietary rights of others, it is possible that
others will assert that they do. The cost of responding to such an assertion may
be significant, even if the assertion is false. The software market has
traditionally experienced widespread unauthorized reproduction of products in
violation of intellectual property rights. Such activity is difficult to detect
and legal proceedings to enforce intellectual property rights are often
burdensome and involve a high degree of uncertainty and costs.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares by the Selling Stockholders.
5
<PAGE> 7
SELLING STOCKHOLDERS
Set forth below, with respect to each Selling Stockholder, is the number of
shares of Common Stock beneficially owned as of February 13, 1998, the number of
Shares offered pursuant to this Prospectus and the number of shares to be owned
after completion of the offering (assuming the sale of all the Shares offered
hereunder).
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF SHARES
TOTAL NUMBER OF SHARES TO BE TO BE OWNED AFTER
NAME SHARES OWNED OFFERED OR SOLD THE OFFERING
- ---- ----------------- --------------- -----------------
<S> <C> <C> <C>
Rand K. Barthel 2,094 2,094 0
Barry J. Cushing 2,717 2,281 436
Mark Eisner 313 313 0
Helen Foy 78 78 0
James D. Foy 16,834(1) 7,305 9,529(1)
Marc Guyott 766 766 0
Kenneth A. Lord 11,135(2) 4,205 6,930(2)
Michael Mahoney 406 406 0
Christine Plunkett 322 322 0
Lee J. Sheffler 11,877(3) 5,207 6,670(3)
Theodore Stefanik 1,272 1,272 0
Graeme Williams 1,220 1,220 0
</TABLE>
- ----------------
(1) Includes 9,529 shares of common stock subject to currently exercisable
options.
(2) Includes 6,930 shares of common stock subject to currently exercisable
options.
(3) Includes 6,670 shares of common stock subject to currently exercisable
options.
The shares offered hereby were issued by the Company on October 1, 1997 in
connection with continuing obligations of the Company pursuant to the Plan of
Reorganization and Asset Purchase Agreement between the Company and
Constellation Software, Inc. (CSI). Messrs. Barthel, James Foy, Mahoney, and
Sheffler are currently employees of the Company.
PLAN OF DISTRIBUTION
The Selling Stockholders and their agents, donees, distributees, pledgees
and other successors in interest may, from time to time, offer for sale and sell
or distribute the Shares to be offered by them hereby (a) in transactions
executed on the Nasdaq National Market, or any securities exchange on which the
shares may be traded, through registered broker-dealers (who may act as
principals, pledgees or agents) pursuant to unsolicited orders or offers to buy,
(b) in negotiated transactions, or (c) through other means. The Shares may be
sold from time to time in one or more transactions at market prices prevailing
at the time of sale or a fixed offering price, which may be changed, or at
varying prices determined at the time of sale or at negotiated prices. Such
prices will be determined by the Selling Stockholders or by agreement between
the Selling Stockholders and their underwriters, dealers, brokers or agents. The
Shares may also be offered in one or more underwritten offerings, on a firm
commitment or best efforts basis.
In connection with distribution of the Shares, the Selling Stockholders may
enter into hedging or other option transactions with broker-dealers in
connection with which, among other things, such broker-dealers may engage in
short sales of the Shares pursuant to this Prospectus in the course of hedging
the positions they may assume with one or more of the Selling Stockholders. The
Selling Stockholders may also sell Shares short pursuant to this Prospectus and
deliver the Shares to close out such short positions. The Selling Stockholders
may also enter into option or other transactions with broker-dealers which may
result in the delivery of Shares to such broker-dealers who may sell such Shares
pursuant to this Prospectus. The Selling Stockholders may
6
<PAGE> 8
also pledge the Shares to a broker-dealer and upon default the broker-dealer may
effect the sales of the pledged Shares pursuant to this Prospectus.
The distribution of the Shares by the Selling Stockholders is not subject
to any underwriting agreement. Any underwriters, dealers, brokers or agents
participating in the distribution of the Shares may receive compensation in the
form of underwriting discounts, concessions, commissions or fees from the
Selling Stockholders and/or purchasers of Shares, for whom they may act. Such
discounts, concessions, commissions or fees will not exceed those customary for
the type of transactions involved. In addition, the Selling Stockholders and any
such underwriters, dealers, brokers or agents that participate in the
distribution of Shares may be deemed to be underwriters under the Securities
Act, and any profits on the sale of Shares by them and any discounts,
commissions or concessions received by any of such persons may be deemed to be
underwriting discounts and commissions under the Securities Act. Those who act
as underwriter, broker, dealer or agent in connection with the sale of the
Shares will be selected by the Selling Stockholders and may have other business
relationships with the Company and its subsidiaries or affiliates in the
ordinary course of business.
The aggregate proceeds to the Selling Stockholders from the sale of the
Shares offered by the Selling Stockholders hereby will be the purchase price of
such Shares less any broker's commissions.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdiction only through registered
or licensed brokers or dealers. In addition, in certain states the Shares may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration of qualification
requirement is available and is complied with.
The Company has agreed to indemnify the Selling Shareholders against
certain liabilities, including liabilities under the Securities Act.
There is no assurance that the Selling Stockholders will sell any or all of
the Shares described herein and may transfer, devise or gift such securities by
other means not described herein. The Company is permitted to suspend the use of
this Prospectus in connection with sales of the Shares by holders during certain
periods of time under certain circumstances relating to pending corporate
developments and public filings with the Commission and similar events. Expenses
of preparing and filing the registration statement and any and all amendments
thereto will be borne by the Company.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby is being passed upon for
the Company by Choate, Hall & Stewart (a partnership including professional
corporations), Boston, Massachusetts. Richard N. Hoehn, a partner of Choate,
Hall & Stewart, is the Secretary of the Company.
7
<PAGE> 9
================================================================================
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY OF THE UNDERWRITERS. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THOSE TO
WHICH IT RELATES OR AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, TO
ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR SOLICITATION WOULD BE
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
---------------------
TABLE OF CONTENTS
PAGE
----
Available Information.................................................... 2
Incorporation of Certain Documents by Reference.......................... 2
The Company.............................................................. 3
Risk Factors............................................................. 4
Use of Proceeds.......................................................... 5
Selling Stockholders..................................................... 6
Plan of Distribution..................................................... 6
Interests of Named Experts and Counsel................................... 7
================================================================================
================================================================================
25,467 SHARES
ARDENT
SOFTWARE, INC.
COMMON STOCK
-----------------
PROSPECTUS
FEBRUARY 27, 1998
-----------------
================================================================================
<PAGE> 10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
registrant in connection with the distribution of the securities being
registered hereunder. All of the amounts shown are estimates, except the
Securities and Exchange Commission registration fee.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee..... $ 76.54
---------
Legal Fees and Expenses................................. 5,000.00
---------
Accountants' Fees and Expenses.......................... 500.00
---------
Total............................................ $5,576.54
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation may indemnify a director, officer, employee or agent
against expenses (including attorneys' fees), judgments, fines and for amounts
paid in settlement in respect of or in successful defense of any action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Article X of the Company's Second Restated Certificate of Incorporation
provides that the Company shall, to the fullest extent permitted from time to
time under the General Corporation Law of the State of Delaware, indemnify each
of its directors and officers against all expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement in respect of any action, suit,
or proceeding in which such director or officer may be involved or with which he
may be threatened while in office or thereafter, by reason of his or her actions
or omissions in connection with services to the Company, such indemnification to
include prompt payment of expenses in advance of the final disposition of any
such action, suit, or proceeding.
Under Section 5.2 of the Investment and Registration Rights Agreement (the
Rights Agreement) dated as of February 15, 1994 by and among the Selling
Shareholders, the Company, and CSI, the Selling Shareholders are obligated,
under certain circumstances, to indemnify directors and officers of the Company
against certain liabilities, including liabilities under the Securities Act. The
Registrant, in turn, is also obligated under the Rights Agreement to indemnify
the Selling Shareholders against certain liabilities, including liabilities
under the Securities Act. Reference is made to the Rights Agreement incorporated
herein by reference as Exhibit 4.4.
ITEM 16. EXHIBITS
<TABLE>
<S> <C> <C>
* 4.1 Articles IV, V, VII, and VIII of the Second Restated Certificate of
Incorporation of the Registrant
** 4.2 Articles II, III, IV, V, VI, VII, VIII, and XX of the Registrant's By-Laws, as
amended
*** 4.4 Investment and Registration Rights Agreement dated as of February 15, 1994
between the Registrant, Constellation Software, Inc. and the Selling
Shareholders.
5.1 Opinion of Choate, Hall & Stewart as to validity of shares being registered
and Consent.
23.1 Independent Auditors' Consent -- Deloitte & Touche, LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
24.1 Power of Attorney (part of Signature Page).
</TABLE>
- ---------------
* Incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1 filed with the Commission on March 19, 1992,
Registration No. 33-46533.
II-1
<PAGE> 11
** Incorporated by reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-1 filed with the Commission on March 19, 1992,
Registration No. 33-46533.
*** Incorporated by reference to Exhibit 4.4 to the Company's Registration
Statement on Form S-3 filed with the Commission on June 16, 1994,
Registration No. 33-80372
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4), or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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 of liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with any of 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 Act and
will be governed by the final adjudication of such issue.
II-2
<PAGE> 12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Westboro, The Commonwealth of Massachusetts on April
13, 1998.
Ardent Software, Inc.
(Issuer and Employer)
/S/ PETER GYENES
By:
--------------------------------------
Peter Gyenes, Chief Executive
Officer
II-3
<PAGE> 13
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Peter Gyenes, James K. Walsh, and Richard
N. Hoehn, jointly and severally, his true and lawful attorneys-in-fact and
agents with full powers 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, 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 in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below on the dates indicated by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
NAME CAPACITY DATE
---- -------- ----
<C> <S> <C>
/s/ PETER GYENES Chief Executive Officer and Director April 13, 1998
- --------------------------------------------- (Principal Executive Officer)
Peter Gyenes
/s/ CHARLES F. KANE Executive Vice President and Chief Financial April 13, 1998
- --------------------------------------------- Officer
Charles F. Kane (Principal Financial and Accounting Officer)
/s/ DAVID W. BRUNEL Director April 13, 1998
- ---------------------------------------------
David W. Brunel
/s/ ROBERT G. CLAUSSEN Director April 13, 1998
- ---------------------------------------------
Robert G. Claussen
/s/ JAMES T. DRESHER Director April 13, 1998
- ---------------------------------------------
James T. Dresher
/s/ MARTIN T. HART Director April 13, 1998
- ---------------------------------------------
Martin T. Hart
/s/ ROBERT M. MORRILL Director April 13, 1998
- ---------------------------------------------
Robert M. Morrill
</TABLE>
II-4
<PAGE> 14
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER NO.
- ------ ----
<C> <S> <C>
4.1 Articles IV, V, VII, and VIII of the Second Restated Certificate of
Incorporation of the Registrant *
4.2 Articles II, III, IV, V, VI, VII, VIII, and XX of the Registrant's By-Laws,
as amended **
4.4 Investment and Registration Rights Agreement dated as of February 15, 1994
between the Registrant, Constellation Software, Inc. and the Selling
Shareholders. ***
5.1 Opinion of Choate, Hall & Stewart as to validity of shares being registered
and Consent.
23.1 Independent Auditors' Consent -- Deloitte & Touche, LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
24.1 Power of Attorney (included in page II-4).
</TABLE>
- ---------------
* Incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1 filed with the Commission on March 19, 1992,
Registration No. 33-46533.
** Incorporated by reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-1 filed with the Commission on March 19, 1992,
Registration No. 33-46533.
*** Incorporated by reference to Exhibit 4.4 to the Company's Registration
Statement on Form S-3 filed with the Commission on June 16, 1994,
Registration No. 33-80372
II-5
<PAGE> 1
Exhibit 5.1
CHOATE, HALL & STEWART
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
EXCHANGE PLACE
53 STATE STREET
BOSTON, MASSACHUSETTS 02109-2891
TELEPHONE (617)248-5000
FACSIMILE (617) 248-4000
TELEX 49615860
February 27, 1998
Ardent Software, Inc.
50 Washington Street
Westboro, Massachusetts 01581
Ladies and Gentlemen:
This opinion is delivered to you in connection with the registration
statement on Form S-3 (the "Registration Statement") to be filed on or about
February 27, 1998 by Ardent Software, Inc. (the "Company") under the Securities
Act of 1933, as amended, for registration under said Act of 25,467 shares of
common stock, $.01 par value (the "Common Stock"), of the Company.
We are familiar with the Company's Certificate of Incorporation, as
amended, its By-Laws, as amended, and the records of its corporate proceedings.
We have also examined such other documents, records and certificates and made
such further investigation as we have deemed necessary for the purposes of this
opinion.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock to be sold by the Selling Stockholders pursuant to the
Registration Statement have been legally issued, fully paid and nonassessable.
We understand that this opinion is to be used in connection with the
Registration Statement and consent to the filing of this opinion as an exhibit
to the Registration Statement. We further consent to the reference to this firm
in the section entitled "Interests of Named Experts and Counsel" in the
Registration Statement.
Very truly yours,
CHOATE, HALL & STEWART
<PAGE> 1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Ardent Software, Inc. (formerly VMARK Software, Inc.) on Form S-3 of our report
dated January 27, 1997, appearing in the Annual Report on Form 10-K of VMARK
Software, Inc. for the year ended December 31, 1996.
DELOITTE & TOUCHE, LLP
Boston, Massachusetts
Dated: February 25, 1998
