<PAGE> 1
<TABLE>
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<S> <C>
As filed with the Securities and Exchange Commission on April___, 1999, Registration No. 333-________
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================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ARDENT SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
-----------------
DELAWARE NO. 04-2818132
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
50 WASHINGTON STREET
WESTBORO, MASSACHUSETTS 01581-1021
(508) 366-3888
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------
1995 NON-STATUTORY STOCK OPTION PLAN
1991 DIRECTOR STOCK OPTION PLAN
EMPLOYEE STOCK PURCHASE PLAN
1986 STOCK OPTION PLAN
(Full title of plans)
-----------------
copy to:
-------
PETER GYENES
CHAIRMAN OF THE BOARD AND CHIEF RICHARD N. HOEHN, ESQ.
EXECUTIVE OFFICER CHOATE, HALL & STEWART
ARDENT SOFTWARE, INC. EXCHANGE PLACE
50 WASHINGTON STREET 53 STATE STREET
WESTBORO, MASSACHUSETTS 01581-1021 BOSTON, MASSACHUSETTS 02109
(Name and address of agent for service)
<TABLE>
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============================================================================================================================
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered (1) price per share (2) offering price (2) registration fee
---------------- -------------- ------------------- ------------------ ----------------
- ----------------------------------------------------------------------------------------------------------------------------
Common Stock, 6,984,000 shares $15.25 $106,506,000 $29,608.67
$.01 par value
============================================================================================================================
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(1) Plus such additional number of shares as may be required pursuant to the
Plan in the event of a stock dividend, split-up of shares, recapitalization or
other similar change in the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457(h)(1), on the basis of the average of the high and low
prices of the Common Stock as reported on the Nasdaq National Market on
April 12, 1999.
<PAGE> 2
EXPLANATORY STATEMENT
---------------------
This registration statement has been prepared in accordance with the
requirements of Form S-8 and relates to 6,984,000 shares of Common Stock, $.01
par value per share, of Ardent Software, Inc. (the "Company"), which represents
an increase of (i) 4,550,000 shares in the number of shares issuable under the
Company's 1995 Non-Statutory Stock Option Plan, (ii) 1,584,000 shares in the
number of shares issuable under the Company's 1986 Stock Option Plan, (iii)
700,000 shares in the number of shares issuable under the Company's Employee
Stock Purchase Plan, and (iv) 150,000 shares in the number of shares issuable
under the Company's 1991 Director Stock Option Plan.
I-2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Company's annual report on Form 10-K for the fiscal year ended
December 31, 1998 filed with the Securities and Exchange Commission (the
"Commission") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing the Company's audited financial statements for the
fiscal year ending December 31, 1998; and
(b) The description of the Company's Common Stock incorporated by reference
into the Company's registration statement on Form 8-A filed with the Commission
on April 8, 1992 from the Company's registration statement on Form S-1 (SEC File
No. 33-46533) filed with the Commission on March 19, 1992.
In addition, all documents filed by the Company after the initial filing
date of this registration statement pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, and prior to the filing of a post-effective amendment
which indicates that all shares registered hereunder have been sold or which
de-registers all shares then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
The validity of the shares registered hereby has been passed upon 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.
II-1
<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
The General Corporation Law of the State of Delaware provides that under
certain circumstances a corporation may indemnify any person for amounts
incurred in connection with a pending or threatened action, suit or proceeding
in which he is, or is threatened to be made, a party by reason of his being a
director, officer, employee or agent of the corporation.
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.
The Company has also purchased insurance coverage under a policy insuring
directors and officers of the Company against certain liabilities which they may
incur in their capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
------------------------------------
Not applicable.
ITEM 8. EXHIBITS.
---------
4.1* Articles IV, V, VII and VIII of the Second Restated Certificate
of Incorporation of the Company.
4.2* Articles II, III, IV, V, VI, VII and XX of the Company's By-Laws,
as amended.
5.1 Opinion of Choate, Hall & Stewart.
10.1** The Company's 1995 Non-Statutory Stock Option Plan (as Amended
and Restated effective December 15, 1998).
10.2 The Company's 1986 Stock Option Plan (As Amended and Restated
effective as of September 30, 1997).
II-2
<PAGE> 5
10.3 The Company's Employee Stock Purchase Plan (As Amended and
Restated effective as of March 17, 1999).
10.4 The Company's 1991 Director Stock Option (As Amended and Restated
effective as of January 28, 1997).
23.1 Independent Auditors' Consent of Deloitte & Touche LLP.
23.2 Consent of Independent Accountants (PricewaterhouseCoopers LLP).
23.3 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
25.1 Power of Attorney (part of page II-6).
- -------------------------------
*Incorporated by reference from the Company's registration statement on Form S-1
(SEC File No. 33-46533).
** Incorporated by reference from the Company's registration statement on Form
S-4 (SEC File No. 333-73267).
ITEM 9. UNDERTAKINGS.
------------
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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, 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.
II-3
<PAGE> 6
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company will, unless in the opinion of 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.
II-4
<PAGE> 7
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Westboro, Commonwealth of Massachusetts on February
26, 1999.
Ardent Software, Inc.
(Issuer and Employer)
By: /s/ PETER GYENES
------------------------------
Peter Gyenes, Chairman of the
Board and Chief Executive
Officer
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter Gyenes, James K. Walsh and Richard N.
Hoehn, jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on February 26, 1999 by the
following persons in the capacities indicated.
Name Capacity
- ---- --------
/s/ PETER GYENES President and Chief Executive Officer;
- ---------------- (Principal Executive Officer) and Director
Peter Gyenes
/s/ CHARLES F. KANE Vice President and Chief Financial Officer
- ------------------- (Principal Financial Officer and Principal
Charles F. Kane Accounting Officer)
/s/ DAVID W. BRUNEL Director
- -------------------
David W. Brunel
/s/ ROBERT G. CLAUSSEN Director
- ----------------------
Robert G. Claussen
/s/ JAMES T. DRESHER Director
- --------------------
James T. Dresher
/s/ MARTIN T. HART Director
- ------------------
Martin T. Hart
/s/ ROBERT M. MORRILL Director
- ---------------------
Robert M. Morrill
II-6
<PAGE> 9
INDEX TO EXHIBITS
EXHIBIT NUMBER PAGE
- -------------- ----
4.1* Articles IV, V, VII and VIII of the Second Restated
Certificate of Incorporation of the Company.
4.2* Articles II, III, IV, V, VI, VII and XX of the Company's
By-Laws, as amended.
5.1 Opinion of Choate, Hall & Stewart.
10.1** The Company's 1995 Non-Statutory Stock Option Plan (as
Amended and Restated effective December 15, 1998).
10.2 The Company's 1986 Stock Option Plan (As Amended and
Restated effective as of September 30, 1997).
10.3 The Company's Employee Stock Purchase Plan (As Amended and
Restated effective as of March 17, 1999).
10.4 The Company's 1991 Director Stock Option (As Amended and
Restated effective as of January 28, 1997).
23.1 Independent Auditors' Consent of Deloitte & Touche LLP.
23.2 Consent of Independent Accountants (PricewaterhouseCoopers
LLP).
23.3 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
25.1 Power of Attorney (part of page II-6).
- -------------------------------
*Incorporated by reference from the Company's registration statement on Form S-1
(SEC File No. 33-46533).
** Incorporated by reference from the Company's registration statement on Form
S-4 (SEC File No. 333-73267).
<PAGE> 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
Exhibit 5.1
-----------
April 14, 1999
Ardent Software, Inc.
50 Washington Street
Westboro, Massachusetts 01581-1021
Ladies and Gentlemen:
This opinion is delivered to you in connection with the Registration Statement
on Form S-8 (the "Registration Statement") to be filed on or about April 14,
1999 by Ardent Software, Inc. (the "Company") under the Securities Act of 1933,
as amended, for registration under said Act of 6,984,000 shares of common stock,
$0.01 par value (the "Common Stock"), of the Company.
We are familiar with the Company's Second Restated Certificate of Incorporation,
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
6,984,000 additional shares of Common Stock to be sold by the Company under its
1995 Non-Statutory Stock Option Plan, 1986 Stock Option Plan, Employee Stock
Purchase Plan, and 1991 Director Stock Option Plan, each as in effect on the
date hereof, when issued against receipt of the agreed purchase price therefor,
will be 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
under the heading Interests of Named Experts and Counsel in Part II of the
Registration Statement.
Very truly yours,
/s/ CHOATE, HALL & STEWART
<PAGE> 1
Exhibit 10.2
ARDENT SOFTWARE, INC.
1986 STOCK OPTION PLAN
Amended and Restated as of September 30, 1997
1. PURPOSE. The purpose of this Plan is to advance the interests of
Ardent Software, Inc. (the "Company") by strengthening the ability of the
Company to attract, retain and motivate key employees and consultants by
providing them with an opportunity to purchase stock of the Company or otherwise
share in the appreciation of such stock. It is intended that this purpose will
be effected by the granting of "incentive stock options" as described in Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"), and
non-statutory options.
2. EFFECTIVE DATES. This Plan originally became effective on June 3,
1986, the date it was adopted by the Board of Directors of the Company (the
"Board). To the extent at any time that amendments are made to the Plan for
which stockholder approval is necessary under applicable tax or securities laws
or under the Board action adopting such amendment, options that may be granted
only as a result of such amendments may be granted before such approval, but no
such options may be exercised until such approval is obtained and such options
will be null and void if such approval is not obtained.
3. STOCK SUBJECT TO THE PLAN. The number of shares that may be issued
under this Plan shall not exceed in the aggregate 4,500,000 shares of the common
stock, $.01 par value, of the Company (the "Shares"). Any Shares subject to an
option which for any reason expires or is terminated unexercised as to such
Shares may again be the subject of an option under the Plan. The Shares
delivered upon exercise of options under this Plan may, in whole or in part, be
either authorized but unissued Shares or issued Shares reacquired by the
Company.
4. ADMINISTRATION. This Plan shall be administered by a committee (the
"Committee") consisting of two (2) or more members of the Board, all of whom are
"non-
<PAGE> 2
employee directors" as defined in Rule 16b-3 promulgated under Section 16 of the
Securities Exchange Act of 1934, as amended ("Rule 16b-3"). Subject to the
provisions of this Plan, the Committee shall have full power to construe and
interpret the Plan and to establish, amend and rescind rules and regulations for
its administration. Any decisions made with respect thereto shall be final and
binding on the Company, the optionees and all other persons.
5. ELIGIBLE PARTICIPANTS. Options may be granted to such key employees or
consultants of the Company or of any of its present or future subsidiaries,
including members of the Board who are also employees of the Company or any of
its subsidiaries, as are selected by the Committee; provided that incentive
stock options may only be granted to employees of the Company.
6. DURATION OF THE PLAN. This Plan shall terminate on June 3, 2006,
unless terminated earlier pursuant to Paragraph 12 hereafter, and no options may
be granted thereafter.
7. RESTRICTIONS ON INCENTIVE OPTIONS. Incentive options (but not
non-statutory options) granted under this Plan shall be subject to the following
restrictions:
(a) LIMITATIONS ON NUMBER OF SHARES. (i) With respect to incentive
options granted before January 1, 1987, the aggregate fair market value,
determined as of the date the incentive option is granted, of the Shares for
which an employee may be granted incentive stock options in any calendar year
shall not exceed $100,000 plus any "unused limit carryovers," as that term is
defined under Section 422(c)(4) of the Code (as in effect immediately prior to
its amendment by the Tax Reform Act of 1986), available in such year; or (ii)
for incentive stock options granted after December 31, 1986, the aggregate fair
market value, determined as of the date the incentive stock option is granted,
of the Shares with respect to which incentive options are exercisable for the
first time by an employee during any calendar year shall not exceed $100,000. In
the event that an employee is eligible to
2
<PAGE> 3
participate in any other incentive stock option plans of the Company or any of
its subsidiaries which are also intended to comply with the provisions of
Section 422 of the Code, the applicable annual limitation shall apply to the
aggregate number of Shares for which incentive options may be granted under all
such plans.
(b) 10% SHAREHOLDER. If any employee to whom an incentive stock
option is granted pursuant to the provisions of the Plan is on the date of grant
the owner of stock (as determined under Section 424(d) of the Code) possessing
more than 10% of the total combined voting power of all classes of stock of the
Company or its present and future subsidiaries, then the following special
provisions shall be applicable to the incentive stock option granted to such
individual:
(i) The option price per Share subject to such option shall not
be less than 110% of the fair market value of one Share on
the date of grant; and
(ii) The incentive stock option shall not have a term in excess
of four (4) years from the date of grant.
(c) EFFECT OF OTHER OUTSTANDING INCENTIVE OPTIONS. No incentive stock
option granted before January 1, 1987 hereunder shall be exercisable by any
optionee while there is "outstanding," within the meaning of Section 422(c)(7)
of the Code (as in effect immediately prior to its amendment by the Tax Reform
Act of 1986), any other incentive stock option which was granted to the optionee
before the granting of the option under this Plan and which permits the optionee
to purchase stock in (i) the Company, (ii) a corporation which (at the time of
the granting of the incentive option under this Plan) is a parent or subsidiary
of the Company, or (iii) a predecessor corporation of any of such corporations.
8. TERMS AND CONDITIONS OF OPTIONS. Options granted under this Plan shall
be evidenced by stock option agreements not inconsistent with this Plan and in
such form as the Committee shall approve from time to time, which agreements
shall evidence among their terms and conditions the following:
3
<PAGE> 4
(a) PRICE. Subject to the condition of subsection (b)(i) of Paragraph
7, if applicable, the purchase price per Share payable upon the exercise of each
option granted hereunder shall be determined by the Committee at the time the
option is granted; provided, however that with respect to incentive stock
options such purchase price shall not be less than 100% of the fair market value
of one Share on the date of the grant.
(b) NUMBER OF SHARES. Each option agreement shall specify the number
of Shares to which it pertains.
(c) EXERCISE OF OPTIONS. Subject to the conditions of subsections
(b)(ii) and (c) of Paragraph 7, if applicable, each option shall be exercisable
for the full amount or for any part thereof and at such intervals or in such
installments as the Committee may determine at the time it grants such option;
provided, however, that no option shall be exercisable with respect to any
Shares later than ten (10) years after the date of the grant of such option.
(d) NOTICE OF EXERCISE AND PAYMENT. An option shall be exercisable
only by delivery of a written notice to the Company's Treasurer, or any other
officer of the Company designated by the Committee to accept such notices on its
behalf, specifying the number of Shares for which it is exercised. If said
Shares are not at that time effectively registered under the Securities Act of
1933, as amended, the optionee shall include with such notice a letter, in form
and substance satisfactory to the Company, confirming that the Shares are being
purchased for the optionee's own account for investment and not with a view to
distribution. Payment shall be made in full at the time the option is exercised.
Payment shall be made by (i) cash, (ii) cashier's or certified check, (iii) if
permitted by the Committee, by delivery and assignment to the Company of shares
of Company stock having a fair market value (as determined by the Committee)
equal to the exercise price, (iv) if permitted by the Committee, by promissory
note, or (v) by a combination of (i), (ii), (iii), or (iv).
(e) WITHHOLDING TAXES; DELIVERY OF SHARES. The Company's obligation
to
4
<PAGE> 5
deliver Shares upon exercise of a non-statutory option, in whole or in part,
shall be subject to the optionee's satisfaction of all applicable federal, state
and local income and employment tax withholding obligations. The optionee may
satisfy the obligation, in whole or in part, by electing to have the Company
withhold Shares having a value equal to the amount required to be withheld. The
value of Shares to be withheld shall be based on the fair market value of the
Shares on the date the amount of tax to be withheld is to be determined (the
"Tax Date"). The optionee's election to have Shares withheld for this purpose
will be subject to the following restrictions: (1) the election must be made
prior to the Tax Date, (2) the election must be irrevocable, (3) the election
will be subject to the right of the Committee to disapprove the election, and
(4) if the participant is a person who, by reason of his relationship to the
Company, would be subject to Section 16 of the Securities and Exchange Act of
1934, as amended, in connection with his acquisition or disposition of Shares,
such election must comply in all respects with the requirements of Rule 16b-3.
(f) NON-TRANSFERABILITY. No option shall be transferable by the
optionee otherwise than by will or the laws of descent and distribution, and
each option shall be exercisable during his lifetime only by him.
(g) TERMINATION OF OPTIONS. Each option shall terminate and may no
longer be exercised if the optionee ceases for any reason to be neither an
employee of nor consultant to the Company, or its parent or a subsidiary, in
accordance with the following provisions:
(i) if the optionee's relationship shall have been
terminated by resignation or other voluntary action, or
shall have been terminated involuntarily for cause, the
option shall terminate and may no longer be exercised;
(ii) if the optionee's relationship shall have been
terminated for any reason other than cause, resignation
or other voluntary action before he is eligible to
retire, disability or death, he may at any time within
a period of three (3) months after such termination
exercise his option to the extent that the option was
exercisable by him on the date of termination;
5
<PAGE> 6
(iii) if the optionee's relationship shall have been
terminated because of disability within the meaning of
Section 22(e)(3) of the Code, he may at any time within
a period of one (1) year after such termination
exercise his option to the extent that the option was
exercisable by him on the date of such termination; and
(iv) if the optionee dies at a time when he might have
exercised the option, then his estate, personal
representative or beneficiary to whom it has been
transferred pursuant to Paragraph 8(f) hereof may at
any time within a period of one (1) year after the
optionee's death exercise the option to the extent the
optionee might have exercised it at the time of his
death;
provided, however, that no option may be exercised to any extent by anyone after
the date of expiration of the option.
(h) RIGHTS AS STOCKHOLDER. The optionee shall have no rights
as a stockholder with respect to any Shares covered by his option until the date
of issuance of a stock certificate to him for such Shares.
(i) REPURCHASE OF SHARES BY THE COMPANY. Any Shares purchased
by an optionee upon exercise of an option may in the discretion of the Committee
be subject to repurchase by the Company if and to the extent specifically set
forth in the option agreement pursuant to which the Shares were purchased.
9. STOCK DIVIDENDS; STOCK SPLITS; STOCK COMBINATION; RECAPITALIZATIONS.
Appropriate adjustment shall be made in the maximum number of Shares subject to
the Plan and in the number, kind, and option price of Shares covered by
outstanding options granted hereunder to give effect to any stock dividends,
stock splits, stock combinations, recapitalizations and other similar changes in
the capital structure of the Company after the effective date of the Plan.
10. MERGER; SALE OF ASSETS; DISSOLUTION. In the event of a change of
the Shares resulting from a merger or similar reorganization as to which the
Company is the surviving corporation, the number and kind of shares which
thereafter may be optioned and sold under
6
<PAGE> 7
the Plan, and the number and kind of shares then subject to options granted
hereunder and the option price per share thereof shall be appropriately adjusted
in such manner as the Committee may deem equitable to prevent substantial
dilution or enlargement of the rights available or granted hereunder. Except as
otherwise determined by the Committee, a merger or a similar reorganization
which the Company does not survive, or a sale of all or substantially all of the
assets of the Company, shall cause every option outstanding hereunder to
terminate, to the extent not then exercised, unless any surviving entity agrees
to assume the obligations hereunder.
11. DEFINITIONS.
(a) The term "key employees" refers to those executive, technical,
administrative or managerial employees who are determined by the Committee to be
eligible for options under this Plan.
(b) The term "option", unless otherwise indicated, means either an
incentive option or a non-statutory option. The term "options" refers to both
incentive stock options and non-statutory options.
(c) The term "optionee" means a key employee to whom an option is
granted under this Plan.
(d) The term "parent" shall have, for purposes of this plan, the
meaning ascribed to it under Section 424(e) of the Code and the regulations
promulgated thereunder.
(e) The term "subsidiary" shall have, for purposes of this Plan, the
meaning ascribed to it under Section 424(f) of the Code and the regulations
promulgated thereunder.
12. TERMINATION OR AMENDMENT OF PLAN. The Board may at any time terminate
the Plan or make such changes in or additions to the Plan as it deems advisable
without further action on the part of the stockholders of the Company, provided
that:
(a) no such termination or amendment shall adversely affect or impair
any
7
<PAGE> 8
then outstanding option without the consent of the optionee holding such option;
and
(b) no such amendment which (i) increases the maximum number of
Shares subject to this Plan (subject to the provisions of Paragraph 9), (ii)
changes the class of persons eligible to participate in the Plan, or (iii)
materially increases the benefits accruing to participants under the Plan shall
be effective unless it is approved by the stockholders of the Company within
twelve (12) months from the effective date of such amendment and shall be null
and void if such approval is not obtained.
<TABLE>
<CAPTION>
AMENDMENT BOARD ACTION STOCKHOLDER APPROVAL
--------- ------------ --------------------
<S> <C> <C>
VARIOUS MARCH 25, 1992 APRIL, 1992
INCREASE FROM 1,366,000 TO 1,766,000 FEBRUARY 5, 1993 APRIL 21, 1993
INCREASE FROM 1,766,000 TO 2,116,000 FEBRUARY 10, 1994 APRIL 27, 1994
INCREASE FROM 2,116,000 TO 2,916,000 FEBRUARY 1, 1995 JUNE 14, 1995
EXTEND PLAN TO JUNE 3, 2006 MARCH 21, 1996 JUNE 6, 1996
CHANGED TERM "DISINTERESTED PERSONS" TO JANUARY 28, 1997
"NON-EMPLOYEE DIRECTORS" IN PARAGRAPH 4.
CLARIFICATION OF "CONSULTANT" PARAGRAPH 8g.
INCREASE FROM 2,916,000 TO 4,500,000 SEPTEMBER 30, 1997 FEBRUARY 10, 1998
</TABLE>
8
<PAGE> 1
Exhibit 10.3
ARDENT SOFTWARE, INC.
EMPLOYEE STOCK PURCHASE PLAN
Amended and Restated effective March 17, 1999
l. PURPOSE. The purpose of this Employee Stock Purchase Plan (the "Plan")
is to provide employees of Ardent Software, Inc. (the "Company"), and
its subsidiaries, who wish to become stockholders of the Company an
opportunity to purchase Common Stock of the Company (the "Shares"). The
Plan is intended to qualify as an "employee stock purchase plan" within
the meaning of Section 423 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. ELIGIBLE EMPLOYEES. Subject to provisions of Sections 7, 8 and 9 below,
any individual who is in the full-time employment (as defined below) of
the Company, or any of its subsidiaries (as defined in Section 424(f)
of the Code) the employees of which are designated by the Board of
Directors as eligible to participate in the Plan, is eligible to
participate in any Offering of Shares (as defined in Section 3 below)
made by the Company hereunder. Full-time employment shall include all
employees whose customary employment is:
(a) in excess of 20 hours per week; and
(b) more than five months in the relevant calendar year.
3. OFFERING DATES. From time to time the Company, by action of the Board
of Directors, will grant rights to purchase Shares to employees
eligible to participate in the Plan pursuant to one or more offerings
(each of which is an "Offering") on a date or series of dates (each of
which is an "Offering Date") designated for this purpose by the Board
of Directors.
4. PRICES. The Price per share for each grant of rights hereunder shall be
the lesser of:
(a) eighty-five percent (85%) of the fair market value of a Share
on the Offering Date on which such right was granted; or
(b) eighty-five percent (85%) of the fair market value of a Share
on the date such right is exercised.
At its discretion, the Board of Directors may determine a higher price
for a grant of rights.
<PAGE> 2
5. EXERCISE OF RIGHTS AND METHOD OF PAYMENT.
(a) Rights granted under the Plan will be exercisable periodically
on specified dates as determined by the Board of Directors.
(b) The method of payment for Shares purchased upon exercise or
rights granted hereunder shall be through regular payroll
deductions or by lump sum cash payment, or both, as determined
by the Board of Directors; provided, however, that payment
through regular payroll deductions may in no event commence
before the date on which a prospectus with respect to the
Offering of the Shares covered by the Plan is provided to each
participating employee. No interest shall be paid upon payroll
deductions unless specifically provided for by the Board of
Directors.
(c) Any payments received by the Company from a participating
employee and not utilized for the purchase of Shares upon
exercise of a right granted hereunder shall be promptly
returned to such employee by the Company after termination of
the right to which the payment relates.
6. TERM OF RIGHTS. Rights granted on any Offering Date shall be
exercisable upon the expiration of such period ("Offering Period") as
shall be determined by the Board of Directors when it authorizes the
Offering, provided that such Offering Period shall in no event be
longer than twenty-seven (27) months.
7. SHARES SUBJECT TO THE PLAN. No more than 1,000,000 Shares may be sold
pursuant to rights granted under the Plan. Appropriate adjustments in
the above figure, in the number of Shares covered by outstanding rights
granted hereunder, in the exercise price of the rights and in the
maximum number of Shares which an employee may purchase (pursuant to
Section 9 below) shall be made to give effect to any mergers,
consolidations, reorganizations, recapitalizations, stock splits, stock
dividends or other relevant changes in the capitalization of the
Company occurring after the effective date of the Plan, provided that
no fractional Shares shall be subject to a right and each right shall
be adjusted downward to the nearest full Share. Any agreement of merger
or consolidation will include provisions for protection of the then
existing rights of participating employees under the Plan. Either
authorized and unissued Shares or issued Shares heretofore or hereafter
reacquired by the Company may be made subject to rights under the Plan.
If for any reason any right under the Plan terminates in whole or in
part, Shares subject to such terminated right may again be subjected to
a right under the Plan.
8. LIMITATIONS ON GRANTS.
(a) No employee shall be granted a right hereunder if such
employee, immediately after the right is granted, would own
stock or rights to purchase stock
2
<PAGE> 3
possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company,
or of any subsidiary, computed in accordance with Sections
423(b)(3) and 424(d) of the Code.
(b) No employee shall be granted a right which permits his right
to purchase shares under all employee stock purchase plans of
the Company and its subsidiaries to accrue at a rate which
exceeds twenty-five thousand dollars ($25,000) (or such other
maximum as may be prescribed from time to time by the Code) of
the fair market value of such Shares (determined at the time
such right is granted) for each calendar year in which such
right is outstanding at any time in accordance with the
provisions of Section 423(b)(8) of the Code.
(c) No right granted to any participating employee under a single
Offering shall cover more shares than may be purchased at an
exercise price equal to that percentage of the employee's
annual rate of compensation on the date the employee elects to
participate in the Offering as determined by the Board of
Directors from time to time.
9. LIMIT ON PARTICIPATION. Participation in an Offering shall be limited
to eligible employees who elect to participate in such Offering in the
manner, and within the time limitation, established by the Board of
Directors when it authorizes the offering.
10. CANCELLATION OF ELECTION TO PARTICIPATE. An employee who has elected to
participate in an Offering may, unless the employee has waived this
cancellation right at the time of such election in a manner established
by the Board of Directors, cancel such election as to all (but not
part) of the rights granted under such Offering by giving written
notice of such cancellation to the Company before the expiration of the
Offering Period. Any amounts paid by the employee for the Shares or
withheld for the purchase of Shares from the employee's compensation
through payroll deductions shall be paid to the employee, without
interest, upon such cancellation.
11. TERMINATION OF EMPLOYMENT. Upon termination of employment for any
reason, including the death of the employee, before the date on which
any rights granted under the Plan are exercisable, all such rights
shall immediately terminate and amounts paid by the employee for the
Shares or withheld for the purchase of Shares from the employee's
compensation through payroll deductions shall be paid to the employee
or to the employee's estate, without interest.
12. EMPLOYEE'S RIGHTS AS STOCKHOLDER. No participating employee shall have
any rights as a stockholder in the Shares covered by a right granted
hereunder until such rights has been exercised, full payment has been
made for the corresponding Shares and the Share certificate is actually
issued.
3
<PAGE> 4
13. RIGHTS NOT TRANSFERABLE. Rights under the Plan are not assignable or
transferable by a participating employee and are exercisable only by
the employee.
14. AMENDMENTS TO OR DISCONTINUANCE OF THE PLAN. The Board of
Directors may at any time terminate or amend this Plan without notice
and without further action on the part of stockholders of the Company,
provided:
(a) that no such termination or amendment shall adversely affect the then
existing rights of any participating employee;
(b) that any such amendment which:
(i) increases the number of Shares subject to the Plan (subject to
the provisions of Section 7);
(ii) changes the class of persons eligible to participate under the
Plan; or
(iii) materially increases the benefits accruing to participants
under the Plan shall be subject to approval of the
stockholders of the Company.
15. EFFECTIVE DATE AND APPROVALS. The Plan was adopted by the Board of
Directors on March 25, 1992 to become effective as of said date and
approved by the stockholders of the Company on April 17, 1992. The
Company's obligation to offer, sell and deliver its Shares under the
Plan is subject to the approval of any governmental authority required
in connection with the authorized issuance or sale of such Shares and
is further subject to the Company receiving the opinion of its counsel
that all applicable securities laws have been complied with.
16. TERM OF PLAN. No rights shall be granted under the Plan after March 25,
2007.
17. ADMINISTRATION OF THE PLAN. The Board of Directors or any committee or
persons to whom it delegates its authority (the "Administrator") shall
administer, interpret and apply all provisions of the Plan. The
Administrator may waive such provisions of the Plan as it deems
necessary to meet special circumstances not anticipated or covered
expressly by the Plan. Nothing contained in this Section shall be
deemed to authorize the Administrator to alter or administer the
provisions of the Plan in a manner inconsistent with the provisions of
Section 423 of the Code.
4
<PAGE> 5
<TABLE>
<CAPTION>
AMENDMENT BOARD ACTION STOCKHOLDER APPROVAL
--------- ------------ --------------------
<S> <C> <C>
INCREASE TO 200,00 SHARES FEBRUARY 5, 1993 APRIL 21, 1993
INCREASE TO 300,000 SHARES FEBRUARY 1, 1995 JUNE 14, 1995
INCREASE TO 500,000 SHARES MARCH 21, 1996 JUNE 6, 1996
EXTEND FOR 10 YEARS JUNE 28, 1997 MAY 6, 1997
INCREASE TO 700,000 SHARES OCTOBER 7, 1997 FEBRUARY 10, 1998
INCREASE TO 1,000,000 SHARES MARCH 17, 1999 ANTICIPATED MAY 10, 1999
</TABLE>
5
<PAGE> 1
EXHIBIT 10.4
ARDENT SOFTWARE, INC.
1991 DIRECTOR STOCK OPTION PLAN
Amended and Restated effective January 28, 1997
1. Purpose
-------
The purpose of this 1991 Director Stock Option Plan (the "Plan") of ARDENT
Software, Inc. (the "Company") is to encourage ownership in the Company by
outside directors of the Company whose continued services are considered
essential to the Company's future progress and to provide them with a further
incentive to remain as directors of the Company.
2. Administration
--------------
The Board of Directors shall supervise and administer the Plan. Grants of
stock options under the Plan and the amount and nature of the awards to be
granted shall be automatic in accordance with Section 5. However, all questions
of interpretation of the Plan or of any options issued under it shall be
determined by the Board of Directors and such determination shall be final and
binding upon all persons having an interest in the Plan.
3. Participation in the Plan
-------------------------
Directors of the Company who are not employees of the Company or any
subsidiary of the Company shall be eligible to participate in the Plan.
4. Stock Subject to the Plan
-------------------------
a. The maximum number of shares which may be issued under the Plan shall
be 350,000 shares of the Company's Common Stock ("Common Stock"), subject to
adjustment as provided in Section 9 of the Plan.
b. If any outstanding option under the Plan for any reason expires or is
terminated without having been exercised in full, the shares allocable to the
unexercised portion of such option shall again become available for grant
pursuant to the Plan.
c. All options granted under the Plan shall be non-statutory options not
entitled to special tax treatment under Section 422A of the Internal Revenue
Code of 1986, as amended to-date and as it may be amended from time to time (the
"Code").
5. Terms, Conditions and Form of Options
-------------------------------------
Each option granted under the Plan shall be evidenced by a written
agreement in such form as the Board of Directors shall from time to time
approve, which agreements shall comply with and be subject to the following
terms and conditions:
<PAGE> 2
a. Option Grant Dates
------------------
(i) Options shall be granted to all eligible directors when first
elected to serve as a director, or in the case of directors serving at the time
of approval of this Plan by the Board of Directors, on the date of such
approval.
(ii) On January 31 of each year, commencing January, 1993, options
shall be granted to each eligible director then serving as a director of the
Company.
b. Shares Subject to Option
------------------------
Each option granted pursuant to Section 5(a)(i) of the Plan shall be
exercisable for 15,000 shares of Common Stock. Each option granted pursuant to
Section 5(a)(ii) of the Plan shall be exercisable for 10,000 shares of Common
Stock.
c. Option Exercise Price
---------------------
The option exercise price per share for each option granted under the
Plan shall equal (i) the last reported sales price per share of the Company's
Common Stock on the NASDAQ National Market System (or, if the Company is traded
on a nationally recognized securities exchange on the date of grant, the
reported closing sales price per share of the Company's Common Stock by such
exchange) on the date of grant (or if no such price is reported on such date
such price as reported on the nearest preceding day) or (ii) if the grant occurs
prior to the initial public offering of the Common Stock, the fair market value
per share of Common Stock on the date of grant as determined by the Board of
Directors.
d. Options Non-Transferable
------------------------
Each option granted under the Plan by its terms shall not be
transferable by the Optionee otherwise than by will, or by the laws of descent
and distribution, and shall be exercised during the lifetime of the Optionee
only by him. No option or interest therein may be transferred, assigned, pledged
or hypothecated by the Optionee during his lifetime, whether by operation of law
or otherwise, or be made subject to execution, attachment or similar process.
e. Exercise Period
---------------
Each option may be exercised on a cumulative basis as to one-third of
the shares subject to the option on each of the first, second and third
anniversaries of the date of grant of such option, provided that no option may
be exercised more than one (1) year after the Optionee ceases to serve as a
director of the Company and further provided that, in the event of a change of
control of the Company, such option shall become fully exercisable. For purposes
of the foregoing, a Achange of control@ shall mean (i) the direct or indirect
acquisition by any person, entity or group acting in concert of more than 35% of
the aggregate voting power of the outstanding securities of the Company having
the right to vote at elections of directors, (ii) a majority of the board of
directors of the company ceasing to consist of individuals who are members of
such board on July 29, 1996 or for whose nomination for such membership a
majority of such members voted in favor, or (iii) the disposition by the Company
of substantially all its business, other than in connection with a mere change
of place of incorporation or similar
2
<PAGE> 3
mere change in form. No option shall be exercisable after the expiration of ten
years from the date of grant.
f. Exercise Period Upon Disability or Death
----------------------------------------
Any option granted under the Plan may be exercised, to the extent then
exercisable, by an Optionee who becomes disabled (within the meaning of Section
22(e)(3) of the Code or any successor provision thereto) while acting as a
director of the Company, or may be exercised, to the extent then exercisable,
upon the death of such Optionee while a director of the Company by the person to
whom it is transferred by will, by the laws of descent and distribution, or by
written notice filed pursuant to Section 5(h), in each case within the period of
one year after the date the Optionee ceases to be such a director by reason such
disability or death; provided that, no option shall be exercisable after the
expiration of ten years from the date of grant.
g. Exercise Procedure
------------------
Options may be exercised only by written notice to the Company at its
principal office accompanied by payment in cash of the full consideration for
the shares as to which they are exercised.
h. Exercise by Representative Following Death of Director
------------------------------------------------------
A director, by written notice to the Company, may designate one or
more persons (and from time to time change such designation) including his legal
representative, who, by reason of the director's death, shall acquire the right
to exercise all or a portion of the option. If the person or persons so
designated wish to exercise any portion of the option, they must do so within
the terms of the option as provided herein. Any exercise by a representative
shall be subject to the provisions of the plan.
6. Assignments
-----------
The rights and benefits under the Plan may not be assigned except for the
designation of a beneficiary as provided in Section 5.
7. Time for Granting Options
-------------------------
No options under the Plan shall be granted after December 31, 2005.
8. Limitation of Rights
--------------------
a. No Right to Continue as a Director
----------------------------------
Neither the Plan, nor the granting of an option nor any other action
taken pursuant to the Plan, shall constitute or be evidence of any agreement or
understanding, express or implied, that the Company will retain a director for
any period of time.
3
<PAGE> 4
b. No Stockholders' Rights for Options
-----------------------------------
An Optionee shall have no rights as a stockholder with respect to the
shares covered by his options until the date of the issuance to him of a stock
certificate therefor, and no adjustment will be made for dividends or other
rights (except as provided in Section 9) for which the record date is prior to
the date such certificate is issued.
9. Changes in Common Stock
-----------------------
a. If the outstanding shares of Common Stock are increased, decreased or
exchanged for a different number of kind of shares or other securities, or if
additional shares or new or different shares or other securities are distributed
with respect to such shares of Common Stock or other securities, through merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other distribution with respect so such shares of Common
Stock, or other securities, an appropriate and proportionate adjustment will be
made in (i) the maximum number and kind of shares reserved for issuance under
the Plan, (ii) the number and kind of shares or other securities subject to then
outstanding options under the Plan and (iii) the price for each share subject to
any then outstanding options under the Plan, without changing the aggregate
purchase price as to which such options remain exercisable. No fractional shares
will be issued under the Plan on account of any such adjustments.
b. In the event that the Company is merged or consolidated into or with
another corporation (in which consolidation or merger the stockholders of the
Company receive distributions of cash or securities of another issuer as a
result thereof), or in the event that all or substantially all of the assets of
the Company is acquired by any other person or entity, or in the event of a
reorganization or liquidation of the Company, the Board of Directors of the
Company, or the board of directors of any corporation assuming the obligations
of the Company, shall, as to outstanding options, either (i) provide that such
options shall be assumed, or equivalent options shall be substituted, by the
acquiring or successor corporation (or an affiliate thereof), or (ii) upon
written notice to the Optionees, provide that all unexercised options will
terminate immediately prior to the consummation of such merger, consolidation,
acquisition, reorganization or liquidations unless exercised by the Optionee
within a specified number of days following the date of such notice.
10. Amendment of the Plan
---------------------
The Board of Directors may suspend or discontinue the Plan or review or
amend it in any respect whatsoever; provided, however, that without approval of
the stockholders of the Company no revision or amendment shall change the number
of shares subject to the Plan (except as provided in Section 9), change the
designation of the class of directors eligible to receive options, or materially
increase the benefits accruing to participants under the Plan, and this Plan may
not be amended more than once in any six-month period.
11. Notice
------
Any written notice to the Company required by any of the provisions of the
plan shall be addressed to the Treasurer of the Company and shall become
effective when it is received.
4
<PAGE> 5
12. Governing Law
-------------
The Plan and all determinations made and actions taken pursuant thereto
shall be governed by the laws of the Commonwealth of Massachusetts.
<TABLE>
<CAPTION>
AMENDMENT BOARD ACTION STOCKHOLDER APPROVAL
--------- ------------ --------------------
<S> <C> <C>
INCREASE FROM 100,000 TO 200,00 SHARES FEBRUARY 1, 1995 JUNE 14, 1995
(EFFECTIVE 1/31/95)
INCREASE NO. OF OPTIONS FOR JOINING BOARD FEBRUARY 1, 1995 JUNE 14, 1995
FROM 10,000 TO 15,000
ANNUAL GRANT FROM 2,000 TO 4,000 FEBRUARY 1, 1995 JUNE 14, 1995
ANNUAL GRANT FROM 4,000 TO 5,000 JANUARY 23, 1996 JUNE 6, 1996
INCREASE FROM 200,000 TO 350,000 JANUARY 28, 1997 MAY 6, 1997
ANNUAL GRANT FROM 5,000 TO 10,000 JANUARY 28, 1997 MAY 6, 1997
EXERCISE PERIOD AFTER OPTIONEE CEASES JANUARY 28, 1997 MAY 6, 1997
TO SERVE AS DIRECTOR FROM 90 DAYS TO 1 YEAR
FULL VESTING ON CHANGE OF CONTROL JANUARY 28, 1997 MAY 6, 1997
EXTEND PLAN TO 12/31/2005 JANUARY 28, 1997 MAY 6, 1997
</TABLE>
5
<PAGE> 1
Exhibit 23.1
------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Ardent Software, Inc. on Form S-8 of our report dated January 22, 1999 (March
30, 1999 as to Note 13 to the consolidated financial statements) (which
expresses an unqualified opinion and includes an explanatory paragraph regarding
the restatement of the 1996 statement of operations), appearing in the Annual
Report on Form 10-K of Ardent Software, Inc. for the year ended December 31,
1998.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
April 12, 1999
<PAGE> 1
Exhibit 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated October 25, 1996, on our audit of the financial
statements of Unidata, Inc. and Subsidiaries, which report is included in the
Annual Report of Ardent Software, Inc. on Form 10-K.
/s/ PRICEWATERHOUSECOOPERS LLP
Denver, CO
April 12, 1999
