As filed with the Securities and Exchange Commission on December 22, 1998
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
Viasoft, Inc.
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(Exact name of Registrant as specified in its charter)
Delaware 94-2892506
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3033 North 44th Street, Phoenix, Arizona 85018
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(Address of Registrant's Principal Executive Offices, including zip code)
Viasoft, Inc. Employee Stock Purchase Plan
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(Full title of the plan)
Steven D. Whiteman, President and Chief Executive Officer
Viasoft, Inc.
3033 North 44th Street
Phoenix, Arizona 85018
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(Name and address of agent for service)
(602) 952-0050
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(Telephone number, including area code of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE (2) PRICE FEE
---------- ------------- ------------- ------ ---
Common Stock, 400,000 $6.328 $2,531,200 $703.67
$.001 par value
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate number of shares as may
be required by reason of any stock dividend, recapitalization, stock split,
reorganization, merger, consolidation, combination or exchange of shares or
other similar change affecting the stock.
(2) Estimated pursuant to Rules 457(c) and 457(h) promulgated under the
Securities Act of 1933, as amended, solely for the purpose of calculating
the registration fee using the average of the high and low sales prices for
shares of Common Stock of Viasoft, Inc. on December 17, 1998, as reported
on the Nasdaq National Market.
Page 1 of 26
Exhibit Index on Page 4
<PAGE>
INCORPORATION BY REFERENCE
Pursuant to General Instruction E to Form S-8, the contents of the
Registration Statement filed by Viasoft, Inc. (the "Company") under Registration
Number 33-89870, as filed with the Securities and Exchange Commission on March
1, 1995, and as amended, with respect to securities offered pursuant to the
Company's Employee Stock Purchase Plan, as amended, are hereby incorporated by
reference herein.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, in the State of Arizona, on December 18,
1998.
VIASOFT, Inc.
By: /s/ Steven D. Whiteman
-------------------------------------
Steven D. Whiteman
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Steven D. Whiteman Chief Executive December 18, 1998
- ------------------------------ Officer and Director
Steven D. Whiteman
/s/ Mark R. Schonau Chief Financial December 18, 1998
- ------------------------------ Officer; Vice
Mark R. Schonau President; Treasurer
*/s/ John J. Barry III Director December 18, 1998
- ------------------------------
John J. Barry III
*/s/ Alexander S. Kuli Director December 18, 1998
- ------------------------------
Alexander S. Kuli
*/s/ J. David Parrish Director December 18, 1998
- ------------------------------
J. David Parrish
*/s/ Arthur C. Patterson Director December 18, 1998
- ------------------------------
Arthur C. Patterson
*By /s/ Steven D. Whiteman
-------------------------
Steven D. Whiteman
Attorney-in-Fact
3
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE OR
NUMBER DESCRIPTION METHOD OF FILING
------ ----------- ----------------
4 Viasoft, Inc. Employee Stock Purchase Plan, Page 5
as amended through November 18, 1998
4 Form of opinion rendered by Catherine R. Hardwick, Page 17
General Counsel and Secretary for the Registrant
(including consent)
23.1 Consent of Independent Public Accountants Page 18
23.2 Consent of Counsel See Exhibit 5
24.1 Power of Attorney of John J. Barry III Page 19
24.2 Power of Attorney of Arthur C. Patterson Page 21
24.3 Power of Attorney of Alexander S. Kuli Page 23
24.4 Power of Attorney of J. David Parrish Page 25
4
---------------------------------
VIASOFT, INC.
EMPLOYEE STOCK PURCHASE PLAN
(AS AMENDED THROUGH NOVEMBER 18, 1998)
---------------------------------
The following constitute the provisions of the VIASOFT, Inc. Employee
Stock Purchase Plan.
1. PURPOSE. The VIASOFT, Inc. Employee Stock Purchase Plan (the "Plan")
is intended to provide Eligible Employees of the Company and one or more of its
Affiliates with the opportunity to acquire an equity interest in the Company
through periodic payroll deductions. The Plan is designed to qualify as an
employee stock purchase plan under Code Section 423.
2. DEFINITIONS. For purposes of the Plan, the following terms shall
have the meanings indicated:
(a) "Affiliate" shall mean any company which is a parent or
subsidiary corporation of the Company (as determined in accordance with Code
Section 424), including any parent or subsidiary corporation which becomes such
after the Effective Time.
(b) "Base Salary" shall mean the regular reportable earnings
paid to a Participant by one or more Participating Companies, including all
overtime payments, bonuses, commissions, profit sharing distributions and other
incentive-type payments.
(c) "Board" shall mean the Company's Board of Directors.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(e) "Company" shall mean VIASOFT, Inc., a Delaware
corporation, and any corporate successor to all or substantially all of the
assets or voting stock of VIASOFT, Inc. which shall by appropriate action adopt
the Plan.
(f) "Commencement Date" shall mean the first day of an
Offering Period.
EXHIBIT 4
<PAGE>
(g) "Common Stock" shall mean shares of the Company's common
stock.
(h) "Effective Time" shall mean the time at which the
underwriting agreement for the initial public offering of the Common Stock is
executed and finally priced. The initial Offering Period shall start at the time
of such execution and pricing of the underwriting agreement. However, for any
Affiliate which becomes a Participating Company in the Plan after the Effective
Time, a subsequent Effective Time shall be designated by the Board with respect
to participation by its Eligible Employees.
(i) "Eligible Employee" shall mean any individual who is an
employee of the Company or other Participating Company for purposes of tax
withholding in the appropriate jurisdiction whose customary employment with the
Company or any Participating Company is at least twenty (20) hours per week and
more than five (5) months in any calendar year. For purposes of the Plan, the
employment relationship shall be treated as continuing intact while the
individual is on sick leave or other leave of absence approved by the Company.
Where the period of leave exceeds 90 days and the individual's right to
reemployment is not guaranteed either by statute or by contract, the employment
relationship will be deemed to have terminated on the 91st day of such leave,
unless otherwise required by law.
(j) "Entry Date" shall mean the date established pursuant to
Section 5(a) by an Eligible Employee first electing to participate in the Plan
for the Offering Period in effect under the Plan. The earliest Entry Date under
the Plan shall be the date of the Effective Time.
(k) "Offering Period" shall mean the periods during which
Options are granted and exercisable under the Plan as defined in Section 4.
(l) "Option" shall mean an option to purchase Common Stock
granted to a Participant under the Plan.
(m) "Participant" shall mean any Eligible Employee of a
Participating Company who is participating in the Plan.
(n) "Participating Company" shall mean the Company and such
Affiliate or Affiliates as may be designated from time to time by the Board.
(o) "Participating Company Commencement Date" shall mean the
date, after the Commencement Date for any Offering Period, on which an Affiliate
becomes a Participating Company in the Plan.
(p) "Semi-Annual Entry Date(s)" shall mean the first business
day of May and the first business day of November during each calendar year
within an Offering Period in effect under the Plan.
<PAGE>
(q) "Semi-Annual Period of Participation" shall mean each
semi-annual period for which the Participant actually participates in an
Offering Period in effect under the Plan. There shall be a maximum of four (4)
semi-annual periods of participation within each Offering Period. Except as
otherwise designated by the Committee, the first such semi-annual period (which
may actually be less than or in excess of six (6) months for the initial
Offering Period) shall be measured from the Commencement Date of the Offering
Period until the last business day in the following October; the next such
semi-annual period shall then be measured from the first business day in
November to the last business day in the following April, the third semi-annual
period shall then begin on the first business day in May, and end on the last
business day in the following October; and the final semi-annual period within
the Offering Period shall begin on the first business day of the next November
and end on the last business day of the following April.
(r) "Semi-Annual Exercise Date(s)" shall mean the last
business day of April and October each year on which Options to purchase shares
of Common Stock are automatically exercised for Participants under the Plan.
3. ADMINISTRATION. The Plan shall be administered by a committee (the
"Committee") comprised of two or more non-employee Board members appointed from
time to time by the Board. The Committee shall have full authority to administer
the Plan, including authority to interpret and construe any provision of the
Plan and to adopt such rules and regulations for administering the Plan,
including such as it may deem advisable to comply with applicable law. The
Committee may correct any defect or omission or reconcile any inconsistency in
the Plan, in the manner and to the extent it shall deem desirable. Decisions of
the Committee shall be final and binding on all parties who have an interest in
the Plan.
4. OFFERING PERIODS.
(a) The Plan shall be implemented in a series of successive
Offering Periods, each to be of a duration of twenty-seven (27) months or less
as designated by the Committee prior to the Commencement Date. However, the
initial Offering Period will begin upon the Effective Time and will end on the
last business day in April 1997. The next Offering Period shall commence on the
first business day in May 1997, and subsequent Offering Periods shall commence
as designated by the Committee.
(b) The Committee shall establish a series of successive
Offering Periods until such time as (i) the maximum number of shares of Common
Stock available for issuance under the Plan shall have been issued or (ii) the
Plan shall have been sooner terminated in accordance with Sections 9 or 10(b).
Under no circumstances shall any Options granted under the Plan be exercised,
nor shall any shares of Common Stock be issued hereunder, until such time as (i)
the Plan shall have been approved by the Company's stockholders and (ii) the
Company shall have complied with all applicable requirements of the Securities
Act of 1933 (as amended), all applicable listing requirements of any securities
exchange on which shares of the Common Stock are listed and all other applicable
statutory and regulatory requirements.
<PAGE>
(c) Each Participant shall be granted a separate Option for
each Offering Period in which he/she participates. The Option shall be granted
on the Entry Date on which such individual first joins the Offering Period in
effect under the Plan and shall be automatically exercised in successive
semi-annual installments on the Semi-Annual Exercise Date in each year.
(d) Subject to the limitations set forth in the Plan,
including without limitation Sections 7(c) and 8 herein, the acquisition of
Common Stock through participation in the Plan for any Offering Period shall
neither limit nor require the acquisition of Common Stock by the Participant in
any subsequent Offering Period.
5. ELIGIBILITY AND PARTICIPATION.
(a) Each Eligible Employee shall be eligible to participate in
the Plan in accordance with the following provisions:
(i) An individual who is an Eligible Employee on the
Commencement Date of the Offering Period may participate in the Plan
for such Offering Period on such Commencement Date, which shall be such
Participant's Entry Date, provided he/she enrolls in the Offering
Period on or before such date in accordance with the Plan. Should such
Eligible Employee not so enroll prior to the Commencement Date, then
he/she may not subsequently join that particular Offering Period on any
later date.
(ii) An individual who is not an Eligible Employee on
the Commencement Date of an Offering Period may subsequently enter that
Offering Period on the earlier of (i) the first Semi-Annual Entry Date
on which he/she is an Eligible Employee or (ii) the first Participating
Company Commencement Date on which he/she is an Eligible Employee,
which shall be such Participant's Entry Date, provided he/she enrolls
in the Offering Period on or before such date in accordance with the
Plan. Should such Eligible Employee not so enroll prior to such
Semi-Annual Entry Date or Participating Company Commencement Date, then
he/she may not subsequently join that particular Offering Period on any
later date.
(b) To elect to participate for a particular Offering Period,
the Eligible Employee must complete the enrollment forms prescribed by the
Committee (including the purchase agreement and payroll deduction authorization)
and file such forms with the Company on or before his/her scheduled Entry Date.
Once properly made, an Eligible Employee's election to participate shall be
automatically renewed for each subsequent Offering Period, subject to any
termination or withdrawal as provided in Section 7(e).
(c) The payroll deduction authorized by the Participant for
purposes of acquiring shares of Common Stock under the Plan may be any multiple
of one percent (1%) of the Base Salary paid to the Participant during each
Semi-Annual Period of Participation within
<PAGE>
the Offering Period, up to a maximum of ten percent (10%) of such Base Salary.
The deduction rate so authorized shall continue in effect for the remainder of
the Offering Period and each subsequent Offering Period, except to the extent
such rate is changed in accordance with the following guidelines:
(i) The Participant may, at any time during the
Semi-Annual Period of Participation, reduce his/her rate of payroll
deduction. Such reduction shall become effective as soon as possible
after filing of the requisite reduction form with the Committee (or its
designee), but the Participant may not effect more than one such
reduction during the same Semi-Annual Period of Participation.
(ii) The Participant may, prior to the commencement
of any new Semi-Annual Period of Participation within the Offering
Period or any new Offering Period, increase or decrease the rate of
his/her payroll deduction by filing the appropriate form with the
Committee (or its designee). The new rate (which shall not exceed the
ten percent maximum) shall become effective as of the first date of the
first Semi-Annual Period of Participation following the filing of such
form.
Payroll deductions will automatically cease upon the termination of the
Participant's Option in accordance with the applicable provisions of Section 7
below.
(d) In no event may any Participant's payroll deductions for
any one Semi-Annual Period of Participation exceed Seven Thousand Five Hundred
Dollars ($7,500.00) (U.S. dollars).
(e) At the time the Option is exercised, in whole or in part,
or at the time some or all of the Company's Common Stock issued under the Plan
is disposed of, the Participant must make adequate provision for the Company's
federal, state, or other tax withholding obligations, if any, which arise upon
the exercise of the Option or the disposition of the Common Stock. At any time,
the Company may, but will not be obligated to, withhold from the Participant's
Base Salary the amount necessary for the Company to meet applicable withholding
obligations, including any withholding required to make available to the Company
any tax deductions or benefits attributable to sale or early disposition of
Common Stock by the employee.
6. STOCK SUBJECT TO PLAN.
(a) The Common Stock purchasable by Participants under the
Plan shall, solely in the discretion of the Committee, be made available from
either authorized but unissued shares of Common Stock or from shares of Common
Stock reacquired by the Company, including shares of Common Stock purchased on
the open market. The total number of shares which may be issued under the Plan
shall not exceed 1,200,000 shares (subject to adjustment as provided herein).
<PAGE>
(b) In the event any change is made to the Company's
outstanding Common Stock by reason of any stock dividend, stock split,
combination of shares or other change affecting such outstanding Common Stock as
a class without receipt of consideration, then appropriate adjustments shall be
made by the Committee to (i) the class and maximum number of shares issuable
over the term of the Plan, (ii) the class and maximum number of shares
purchasable per Participant during each Semi-Annual Period of Participation,
(iii) the class and maximum number of shares purchasable in the aggregate by all
Participants on any one purchase date under the Plan and (iv) the class and
number of shares and the price per share of the Common Stock subject to each
Option at the time outstanding under the Plan. Such adjustments shall be
designed to preclude the dilution or enlargement of rights and benefits under
the Plan.
7. TERMS OF OPTIONS. An Eligible Employee who participates in the Plan
for a particular Offering Period shall have an Option to purchase shares of
Common Stock, in a series of successive semi-annual installments during such
Offering Period, upon the terms and conditions set forth below and shall execute
a purchase agreement embodying such terms and conditions and such other
provisions (not inconsistent with the Plan) as the Committee may deem advisable.
(a) Exercise Price. Options to purchase Common Stock shall be
automatically exercised at the end of each Semi-Annual Period of Participation
at a purchase price equal to eighty-five percent (85%) of the lower of (i) the
fair market value per share on the Participant's Entry Date into the Offering
Period or (ii) the fair market value per share on the Semi-Annual Exercise Date
on which such Semi-Annual Period of Participation ends. However, for each
Participant whose Entry Date is other than the Commencement Date of the Offering
Period in effect under the Plan, the clause (i) amount shall in no event be less
than the fair market value of the Common Stock on the Commencement Date of such
Offering Period.
(b) Valuation. For purposes of determining the fair market
value per share of Common Stock on any relevant date, the following procedures
shall be in effect:
(i) For the Effective Time at which the initial
Offering Period under the Plan commences, such fair market value shall
be the price per share at which the Common Stock is sold under the
underwriting agreement in connection with the initial public offering
of the Common Stock.
(ii) For any subsequent date under the Plan on which
the Common Stock is registered under Section 12(g) of the Securities
Exchange Act of 1934, then the fair market value shall be the closing
selling price on that date, as officially quoted on the principal
exchange on which the Common Stock is then traded, or if not so traded,
the closing selling price on that date on the NASDAQ National Market
System. If there is no quoted selling price for such date, then the
closing selling price on the next preceding day for which there does
exist such a quotation shall be determinative of fair market value.
<PAGE>
(iii) If the Common Stock is not then traded on an
exchange or on the NASDAQ National Market System, then the fair market
value of the Common Stock on such date shall be determined by the
Committee, after taking into account such factors as the Committee
deems appropriate.
(c) Number of Purchasable Shares. The number of shares
purchasable per Participant for each Semi-Annual Period of Participation shall
be the number of whole shares obtained by dividing the amount collected from the
Participant through payroll deductions during such Semi-Annual Period of
Participation by the purchase price in effect for the Semi-Annual Exercise Date
on which such Semi-Annual Period of Participation ends. However, no Participant
may, during any one Semi-Annual Purchase Period, purchase more than 2,000 shares
of Common Stock, subject to periodic adjustment under Section 6(b).
Under no circumstances shall an Option be granted under the Plan to any
Eligible Employee if such individual would, immediately after the grant, own
(within the meaning of Code Section 424(d)) or hold outstanding options or other
rights to purchase, stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Company or any of
its Affiliates.
(d) Payroll Deductions. Payment for the Common Stock purchased
under the Plan shall be effected by means of the Participant's authorized
payroll deductions. Such deductions shall begin on the first payday coincident
with or immediately following the Participant's Entry Date into the Offering
Period and shall (unless sooner terminated by the Participant) continue through
the payday ending with or immediately prior to the last day of the Offering
Period. The amounts so collected shall be credited to the Participant's book
account under the Plan, but no interest shall be paid on the balance from time
to time outstanding in such account, except where otherwise required by local
law. The amounts collected from a Participant may be commingled with the general
assets of the Company and may be used for general corporate purposes, except
where otherwise required by local law.
(e) Termination of Option. The following provisions shall
govern the termination of outstanding Options:
(i) A Participant may, at any time prior to the last
five (5) business days of a Semi-Annual Period of Participation,
terminate his/her outstanding Option under the Plan by filing the
prescribed notification form with the Committee (or its designate). No
further payroll deductions shall be collected from the Participant with
respect to the terminated Option, and any payroll deductions collected
for the Semi-Annual Period of Participation in which such termination
occurs shall be promptly refunded.
(ii) The termination of such Option shall be
irrevocable, and the Participant may not subsequently rejoin the
Offering Period for which such terminated Option was granted. In order
to resume participation in any subsequent Offering Period, such
individual must re-enroll in the Plan (by making
<PAGE>
a timely filing of a new purchase agreement and payroll deduction
authorization) on or before the date he/she is first eligible to join
the new Offering Period.
(iii) If the Participant ceases to remain an Eligible
Employee for any reason including without limitation death or
disability, while his/her Option remains outstanding, then all of the
Participant's payroll deductions shall be promptly refunded, without
interest (except where otherwise required by law), to the Participant
or, in the case of his or her death, as provided in Section 7(i).
In no event may any payroll deductions be made on the Participant's
behalf following his/her cessation of Eligible Employee status.
(f) Exercise. Options to purchase shares of Common Stock under
the Plan shall automatically be exercised on behalf of each Participant (other
than Participants whose payroll deductions have previously been refunded in
accordance with the Plan) on each Semi-Annual Exercise Date. The purchase shall
be effected by applying each Participant's payroll deductions for the
Semi-Annual Period of Participation ending on such Semi-Annual Exercise Date
(together with any carryover deductions from the preceding Semi-Annual Period of
Participation and accrued interest required by law) to the purchase of whole
shares of Common stock (subject to the limitation on the maximum number of
purchasable shares set forth herein) at the purchase price in effect for such
Semi-Annual Period of Participation. Any payroll deductions not applied to such
purchase because they are not sufficient to purchase a whole share shall be held
for the purchase of Common Stock in the next Semi-Annual Period of
Participation. However, any payroll deductions not applied to the purchase of
Common Stock by reason of the limitation on the maximum number of shares
purchasable by the Participant for that Semi-Annual Period of Participation
shall be promptly refunded to the Participant.
(g) Proration of Purchase Rights. Not more than 200,000 shares
of Common stock, subject to periodic adjustment under Section 6(b), may be
purchased in the aggregate by all Participants on any one Semi-Annual Exercise
Date under the Plan. Should the total number of shares of Common Stock which are
to be purchased pursuant to outstanding purchase rights on any particular date
exceed either (i) the maximum limitation on the number of shares purchasable in
the aggregate on such date or (ii) the number of shares then available for
issuance under the Plan, the Committee shall make a pro rata allocation of the
available shares on a uniform and nondiscriminatory basis, and the payroll
deductions of each Participant, to the extent in excess of the aggregate
purchase price payable for the Common Stock pro rated to such individual, shall
be promptly refunded to such Participant.
(h) Rights as Stockholder. A Participant shall have no
stockholder rights with respect to the shares subject to his/her outstanding
Option until the shares are actually purchased on the Participant's behalf in
accordance with the applicable provisions of the Plan. No adjustments shall be
made for dividends, distributions or other rights for which the record date is
prior to the date of such purchase.
<PAGE>
A Participant shall be entitled to receive, as soon as practicable
after each Semi-Annual Exercise Date, a stock certificate for the number of
shares purchased on the Participant's behalf.
(i) Designation of Beneficiary.
(i) A Participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
Participant's account under the Plan in the event of such Participant's
death subsequent to a Semi-Annual Exercise Date on which the Option is
exercised but prior to delivery to such Participant of such shares and
cash. In addition, a Participant may file a written designation of a
beneficiary who is to receive any cash from the Participant's account
under the Plan in the event of such Participant's death prior to
exercise of the Option.
(ii) Such designation of beneficiary may be changed
by the Participant at any time by written notice. In the event of the
death of a Participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such
Participant's death, the Company shall deliver such shares and/or cash
to the executor or administrator of the estate of the Participant, or
if no such executor or administrator has been appointed (to the
knowledge of the Company), the Company, in its discretion, may deliver
such shares and/or cash to the spouse or to any one or more dependents
or relatives of the Participant, or if no spouse, dependent or relative
is known to the Company, then to such other person as the Company may
designate.
(j) Transferability. Neither payroll deductions credited to a
Participant's account nor any rights with regard to the exercise of an Option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will or the laws of descent and
distribution, or as provided in Section 7(i) hereof) by the Participant, and
during the Participant's lifetime the Option shall be exercisable only by the
Participant. Any such attempt at assignment, transfer, pledge or other
disposition shall be without effect, except that the Company may treat such act
as an election to terminate participation in an Offering Period in accordance
with Section 7(e).
(k) Change in Ownership; Dissolution. In the event of a
proposed sale of all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, each Option under the
Plan shall be assumed or an equivalent Option shall be substituted by such
successor corporation or a parent or subsidiary of such successor corporation,
unless the Committee determines, in the exercise of its sole discretion and in
lieu of such assumption or substitution, to shorten the Offering Period then in
progress by setting a new Semi-Annual Exercise Date (the "New Exercise Date").
If the Committee shortens the Offering Period then in progress in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Committee shall notify each participant in writing, at least thirty (30) days
prior to the New Exercise Date, that the Semi-Annual Exercise Date for his/her
Option has been changed to the New Exercise Date and that his/her Option will be
exercised automatically on the New
<PAGE>
Exercise Date, unless prior to such date he/she has terminated his/her
participation in the Offering Period as provided in Section 7(e). For purposes
of this paragraph, an Option granted under the Plan shall be deemed to be
assumed if, following the sale of assets or merger, the Option confers the right
to purchase, for each share of Common Stock subject to the Option immediately
prior to the sale of assets or merger, the consideration (whether stock, cash or
other securities or property) received in the sale of assets or merger by
holders of Common Stock for each share of Common Stock held on the effective
date of the transaction (and if such holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares of Common Stock); provided, however, that if such
consideration received in the sale of assets or merger was not solely common
stock of the successor corporation or its parent (as defined in Section 425(e)
of the Code), the Committee may, with the consent of the successor corporation
and the Participant, provide for the consideration to be received upon exercise
of the Option to be solely common stock of the successor corporation or its
parent equal in fair market value to the per share consideration received by
holders of Common Stock in the sale of assets or merger.
In the event of the proposed dissolution or liquidation of the Company,
the Offering Period will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Committee.
8. ACCRUAL LIMITATIONS.
(a) No Participant shall be entitled to accrue rights to
acquire Common Stock pursuant to any Option outstanding under this Plan if and
to the extent such accrual, when aggregated with (i) rights to purchase Common
Stock accrued under any other Option outstanding under this Plan and (ii)
similar rights accrued under other employee stock purchase plans (within the
meaning of Section 423 of the Code) of the Company or its Affiliates, would
otherwise permit such Participant to purchase more than $25,000 (U.S. dollars)
worth of stock of the Company or any Affiliate (determined on the basis of the
fair market value of such stock on the date or dates such rights are granted to
the Participant) for each calendar year such rights are at any time outstanding.
(b) For purposes of applying such accrual limitations, the
right to acquire Common Stock pursuant to each Option outstanding under the Plan
shall accrue as follows:
(i) The right to acquire Common Stock under each such
Option shall accrue in a series of successive semi-annual installments
as and when the Option first becomes exercisable for each semi-annual
installment on the last business day of each Semi-Annual Period of
Participation for which the Option remains outstanding.
<PAGE>
(ii) No right to acquire Common Stock under any
outstanding Option shall accrue to the extent the Participant has
already accrued in the same calendar year the right to acquire $25,000
(U.S. dollars) worth of Common Stock (determined on the basis of the
fair market value on the date or dates of grant) pursuant to one or
more rights held by the Participant during such calendar year.
(iii) If by reason of such accrual limitations, any
Option of a Participant does not accrue for a particular Semi-Annual
Period of Participation, then the payroll deductions which the
Participant made during the Semi-Annual Period of Participation with
respect to such Option shall be promptly refunded.
(c) In the event there is any conflict between the provisions
of this Section 8 and one or more provisions of the Plan or any instrument
issued thereunder, the provisions of this Section 8 shall be controlling.
9. AMENDMENT AND TERMINATION OF PLAN.
(a) The Board may alter, amend, suspend or discontinue the
Plan following the close of any Semi-Annual Period of Participation. However,
the Board may not, without the approval of the Company's stockholders:
(i) materially increase the number of shares issuable
under the Plan or the maximum number of shares which may be purchased
per Participant or in the aggregate during any one Semi-Annual Period
of Participation under the Plan, except that the Committee shall have
the authority, exercisable without such stockholder approval, to effect
adjustments to the extent necessary to reflect changes in the Company's
capital structure pursuant to the Plan;
(ii) alter the exercise price formula so as to reduce
the exercise price payable for the shares issuable under the Plan; or
(iii) materially increase the benefits accruing to
Participants under the Plan or materially modify the requirements for
eligibility to participate in the Plan.
(b) The Company shall have the right, exercisable in the sole
discretion of the Committee, to terminate all outstanding Options under the Plan
immediately following the close of any Semi-Annual Period of Participation.
Should the Company elect to exercise such right, then the Plan shall terminate
in its entirety. No further Options shall thereafter be granted or exercised,
and no further payroll deductions shall thereafter be collected, under the Plan.
<PAGE>
10. GENERAL PROVISIONS.
(a) The Plan shall become effective at the Effective Time,
provided that no Options granted under the Plan shall be exercised, and no
shares of Common Stock shall be issued hereunder, until (i) the Plan shall have
been approved by the stockholders and (ii) the Company shall have complied with
all applicable requirements of the Securities Act of 1933 (as amended), all
applicable listing requirements of any securities exchange on which shares of
the Common Stock are listed and all other applicable requirements established by
law or regulation. In the event such stockholder approval is not obtained, or
such Company compliance is not effected, within twelve (12) months after the
date on which the Plan is adopted by the Board, the Plan shall terminate and
have no further force or effect and all payroll deductions collected hereunder
shall be refunded.
(b) Unless otherwise terminated as provided in Section 9, the
Plan shall terminate on December 31, 2003.
(c) All costs and expenses incurred in the administration of
the Plan shall be paid by the Company.
(d) Neither the action of the Company in establishing the
Plan, nor any action taken under the Plan by the Board or the Committee, nor any
provision of the Plan itself shall be construed so as to create any right for
the benefit of any employee or class of employees to purchase any shares under
the Plan, or to create in any employee or class of employees any right with
respect to continuation of employment by the Company or any of its Affiliates,
or to interfere in any way with the Company's or any Affiliate's right to
terminate, or otherwise modify, an employee's employment at any time.
(e) The provisions of the Plan shall be governed by the laws
of the State of Delaware without resort to that State's conflict-of-laws rules.
(f) The Committee may adopt rules or procedures relating to
the operation and administration of the Plan in non-United States jurisdictions
to accommodate the specific requirements of local laws and procedures. Without
limiting the generality of the foregoing, the Committee is specifically
authorized to adopt rules and procedures regarding handling of payroll
deductions, conversion of local currency, withholding procedures and handling of
stock certificates which vary with local requirements.
[Viasoft letterhead]
December 17, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Viasoft, Inc. Employee Stock Purchase Plan
Ladies and Gentlemen:
I have acted as counsel to Viasoft, Inc., a Delaware corporation (the
"Company"), in connection with its Registration Statement on Form S-8 (the
"Registration Statement") filed under the Securities Act of 1933, as amended,
relating to the registration of 400,000 shares of its Common Stock, $.001 par
value (the "Shares"), issuable pursuant to the Company's Employee Stock Purchase
Plan (the "Plan"). In connection with this representation, I have examined such
documents, corporate records and other instruments as I have deemed necessary or
appropriate for purposes of this opinion.
Based upon the foregoing, I am of the opinion that the Shares, when
issued and sold in accordance with the terms of the Plan, will be validly
issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
By: /s/ Catherine R. Hardwick
---------------------------------
Catherine R. Hardwick
General Counsel and Secretary
EXHIBIT 5
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated July 31, 1998,
included in Viasoft, Inc.'s Form 10-K for the year ended June 30, 1998, and to
all references to our firm included in this registration statement.
ARTHUR ANDERSEN LLP
Phoenix, Arizona,
December 22, 1998.
EXHIBIT 23.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Steven D. Whiteman, Mark R. Schonau and Catherine R. Hardwick, and each
of them, his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to do any and all acts and things and to execute any and
all documents which said attorney-in-fact and agent may deem necessary or
advisable to enable Viasoft, Inc., a Delaware corporation (the "Corporation"),
(1) to sign a Form S-8 Registration Statement in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), of
400,000 additional shares of Common Stock (the "Shares") issuable under the
Employee Stock Purchase Plan, as amended, together with any and all future
amendments (and post-effective amendments) to such Registration Statement, and
to file the same with all exhibits thereto, and all documents in connection
therewith, and to comply with the Act and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof; (2)
to effect the exemption from or, if necessary, the registration or qualification
of all or part of the Shares for offer and sale under the securities or Blue Sky
laws and to effect, if necessary, the registration of the Corporation as a
dealer or broker in any such state or states wherein such registration or
qualification is required or advisable for the purpose of offering or selling
therein the Shares, and to execute and file such irrevocable written consents to
service of process on the part of the undersigned to be used in such state or
states as may be requisite under the securities or Blue Sky laws therein in
connection with said exemption from or, if necessary, the registration or
qualification of the Shares or in connection with said registration of the
Corporation as a dealer or broker, and to appoint the appropriate entity or
state official agent of the undersigned for the purpose of receiving and
accepting process; and (3) to effect the listing of the Shares on the Nasdaq
National Market System or any national securities exchanges; and the undersigned
does hereby ratify and confirm all that said attorney and agent shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents in
the capacity indicated on this 1st day of December, 1998.
/s/ John J. Barry III
----------------------------------------
Director (Signature)
John J. Barry III
----------------------------------------
Director (Print Name)
Witness: /s/ Constance F. Hart
------------------------------
EXHIBIT 24.1
<PAGE>
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this 1st day of December, 1998, before me, the undersigned Notary
Public, personally appeared John J. Barry III, known to me to be the person
whose name is subscribed to the within instrument and acknowledged that he
executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Joni K. Summers
----------------------------------------
Notary Public
My commission expires:
March 30, 2000
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Steven D. Whiteman, Mark R. Schonau and Catherine R. Hardwick, and each
of them, his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to do any and all acts and things and to execute any and
all documents which said attorney-in-fact and agent may deem necessary or
advisable to enable Viasoft, Inc., a Delaware corporation (the "Corporation"),
(1) to sign a Form S-8 Registration Statement in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), of
400,000 additional shares of Common Stock (the "Shares") issuable under the
Employee Stock Purchase Plan, as amended, together with any and all future
amendments (and post-effective amendments) to such Registration Statement, and
to file the same with all exhibits thereto, and all documents in connection
therewith, and to comply with the Act and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof; (2)
to effect the exemption from or, if necessary, the registration or qualification
of all or part of the Shares for offer and sale under the securities or Blue Sky
laws and to effect, if necessary, the registration of the Corporation as a
dealer or broker in any such state or states wherein such registration or
qualification is required or advisable for the purpose of offering or selling
therein the Shares, and to execute and file such irrevocable written consents to
service of process on the part of the undersigned to be used in such state or
states as may be requisite under the securities or Blue Sky laws therein in
connection with said exemption from or, if necessary, the registration or
qualification of the Shares or in connection with said registration of the
Corporation as a dealer or broker, and to appoint the appropriate entity or
state official agent of the undersigned for the purpose of receiving and
accepting process; and (3) to effect the listing of the Shares on the Nasdaq
National Market System or any national securities exchanges; and the undersigned
does hereby ratify and confirm all that said attorney and agent shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents in
the capacity indicated on this 9th day of December, 1998.
/s/ Arthur C. Patterson
----------------------------------------
Director (Signature)
Arthur C. Patterson
----------------------------------------
Director (Print Name)
Witness: /s/ Deb Jacobson
------------------------------
EXHIBIT 24.2
<PAGE>
STATE OF CALIFORNIA )
) ss.
County of Santa Clara )
On this 9th day of December, 1998, before me, the undersigned Notary
Public, personally appeared Arthur C. Patterson, known to me to be the person
whose name is subscribed to the within instrument and acknowledged that he
executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Judith Maurer
----------------------------------------
Notary Public
My commission expires:
August 2, 1999
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Steven D. Whiteman, Mark R. Schonau and Catherine R. Hardwick, and each
of them, his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to do any and all acts and things and to execute any and
all documents which said attorney-in-fact and agent may deem necessary or
advisable to enable Viasoft, Inc., a Delaware corporation (the "Corporation"),
(1) to sign a Form S-8 Registration Statement in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), of
400,000 additional shares of Common Stock (the "Shares") issuable under the
Employee Stock Purchase Plan, as amended, together with any and all future
amendments (and post-effective amendments) to such Registration Statement, and
to file the same with all exhibits thereto, and all documents in connection
therewith, and to comply with the Act and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof; (2)
to effect the exemption from or, if necessary, the registration or qualification
of all or part of the Shares for offer and sale under the securities or Blue Sky
laws and to effect, if necessary, the registration of the Corporation as a
dealer or broker in any such state or states wherein such registration or
qualification is required or advisable for the purpose of offering or selling
therein the Shares, and to execute and file such irrevocable written consents to
service of process on the part of the undersigned to be used in such state or
states as may be requisite under the securities or Blue Sky laws therein in
connection with said exemption from or, if necessary, the registration or
qualification of the Shares or in connection with said registration of the
Corporation as a dealer or broker, and to appoint the appropriate entity or
state official agent of the undersigned for the purpose of receiving and
accepting process; and (3) to effect the listing of the Shares on the Nasdaq
National Market System or any national securities exchanges; and the undersigned
does hereby ratify and confirm all that said attorney and agent shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents in
the capacity indicated on this 1st day of December, 1998.
/s/ Alexander S. Kuli
----------------------------------------
Director (Signature)
Alexander S. Kuli
----------------------------------------
Director (Print Name)
Witness: /s/ Constance F. Hart
------------------------------
EXHIBIT 24.3
<PAGE>
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this 1st day of December, 1998, before me, the undersigned Notary
Public, personally appeared Alexander S. Kuli, known to me to be the person
whose name is subscribed to the within instrument and acknowledged that he
executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Joni K. Summers
----------------------------------------
Notary Public
My commission expires:
March 30, 2000
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Steven D. Whiteman, Mark R. Schonau and Catherine R. Hardwick, and each
of them, his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to do any and all acts and things and to execute any and
all documents which said attorney-in-fact and agent may deem necessary or
advisable to enable Viasoft, Inc., a Delaware corporation (the "Corporation"),
(1) to sign a Form S-8 Registration Statement in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), of
400,000 additional shares of Common Stock (the "Shares") issuable under the
Employee Stock Purchase Plan, as amended, together with any and all future
amendments (and post-effective amendments) to such Registration Statement, and
to file the same with all exhibits thereto, and all documents in connection
therewith, and to comply with the Act and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof; (2)
to effect the exemption from or, if necessary, the registration or qualification
of all or part of the Shares for offer and sale under the securities or Blue Sky
laws and to effect, if necessary, the registration of the Corporation as a
dealer or broker in any such state or states wherein such registration or
qualification is required or advisable for the purpose of offering or selling
therein the Shares, and to execute and file such irrevocable written consents to
service of process on the part of the undersigned to be used in such state or
states as may be requisite under the securities or Blue Sky laws therein in
connection with said exemption from or, if necessary, the registration or
qualification of the Shares or in connection with said registration of the
Corporation as a dealer or broker, and to appoint the appropriate entity or
state official agent of the undersigned for the purpose of receiving and
accepting process; and (3) to effect the listing of the Shares on the Nasdaq
National Market System or any national securities exchanges; and the undersigned
does hereby ratify and confirm all that said attorney and agent shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents in
the capacity indicated on this 1st day of December, 1998.
/s/ J. David Parrish
----------------------------------------
Director (Signature)
J. David Parrish
----------------------------------------
Director (Print Name)
Witness: /s/ Constance F. Hart
------------------------------
EXHIBIT 24.4
<PAGE>
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this 1st day of December, 1998, before me, the undersigned Notary
Public, personally appeared J. David Parrish, known to me to be the person whose
name is subscribed to the within instrument and acknowledged that he executed
the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Joni K. Summers
----------------------------------------
Notary Public
My commission expires:
March 30, 2000
