<PAGE> 1
As filed with the Securities and Exchange Commission on March 9, 1998
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
VIASOFT, INC.
(Exact name of Registrant as specified in its charter)
Delaware 94-2892506
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3033 North 44th Street, Phoenix, Arizona 85018
(Address of Registrant's Principal Executive Offices, including zip code)
Viasoft, Inc. 1997 Equity Incentive Plan
(Full title of the plan)
Steven D. Whiteman, President and Chief Executive Officer
Viasoft, Inc.
3033 North 44th Street
Phoenix, Arizona 85018
(Name and address of agent for service)
(602) 952-0050
(Telephone number, including area code of agent of service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF PROPOSED PROPOSED
SECURITIES AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED (1)(2) PER SHARE (3) OFFERING PRICE (3) FEE
---------- ----------------- ------------- ------------------ ---------------
<S> <C> <C> <C> <C>
Common Stock, 850,000 $28.0625 $23,853,125 $7,036.67
$.001 par value
</TABLE>
(1) This Registration Statement is also deemed to relate to a maximum of
1,167,758 shares from a predecessor plan, pursuant to Instruction E to
Form S-8. These shares were previously registered on Form S-8, as
amended (No. 33-89868), in connection with the Viasoft, Inc. 1994
Equity Incentive Plan, with respect to which a registration fee of
$1,931 has been paid.
(2) 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.
(3) 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 March 5,
1998, as reported on the Nasdaq National Market.
Page 1 of 35
Exhibit Index on Page 8
<PAGE> 2
EXPLANATORY STATEMENT
A total of 1,400,000 shares of common stock of Viasoft, Inc. (the
"Company") were registered by Registration Statement on Form S-8, as amended
(File No. 33-89868), to be issued in connection with the Viasoft, Inc. 1994
Equity Incentive Plan (the "1994 Plan"). On November 14, 1997, the stockholders
of the Company approved the Viasoft, Inc. 1997 Equity Incentive Plan (the "1997
Plan"), which replaced the 1994 Plan. As a result, no further option grants will
be made under the 1994 Plan. Pursuant to Instruction E to Form S-8, a maximum of
1,167,758 shares under the 1994 Plan, which includes (i) twenty-eight thousand
four hundred forty-six (28,446) shares of the Company's common stock that were
registered in connection with the 1994 Plan but have not been issued under the
1994 Plan, and (ii) certain shares of the Company's common stock that were
registered in connection with the 1994 Plan but are subject to awards under the
1994 Plan that are forfeited, terminate, expire or lapse for any reason, are
carried forward to, and deemed covered by, this Registration Statement on Form
S-8 in connection with the 1997 Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to participants in accordance with Form S-8 and
Securities Act Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference into this
Registration Statement: (a) the Registrant's Form 10-K for the year ended June
30, 1997; (b) the Registrant's Form 10-Q for the quarter ended September 30,
1997; (c) the Registrant's Form 10-Q for the quarter ended December 31, 1997;
(d) all other reports filed with the Securities and Exchange Commission pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since June 30,
1997; and (e) the description of the Registrant's capital stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Securities and
Exchange Commission pursuant to Section 12(g) of the Securities Exchange Act of
1934.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated
2
<PAGE> 3
by reference in this Registration Statement and to be a part hereof from the
date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Stock offered hereby has been passed upon
for the Registrant by Catherine R. Hardwick, Vice President, General Counsel and
Secretary of the Registrant, 3033 North 44th Street, Phoenix, Arizona 85018. Ms.
Hardwick owns and has options to purchase Common Stock and is eligible to
receive awards under the 1997 Plan.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article IX of the Company's Restated Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), provides that the Company shall
indemnify directors, officers, and their legal representatives, to the fullest
extent permitted by the Delaware General Corporation Law (the "DGCL"). The DGCL
contains an extensive indemnification provision which permits a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In suits by or in the right of a corporation, only
expenses reasonably incurred in connection with the defense or settlement of
such suit and not judgments, fines, and amounts paid in settlement may be
indemnified against. In addition, if the director or officer has been adjudged
to be liable to the corporation in such a suit, indemnification of expenses must
be approved by a court. Article IX of the Certificate of Incorporation also
provides that the Company may, in its discretion, indemnify employees and agents
in circumstances where indemnification is not required by law.
Article VIII of the Certificate of Incorporation provides that
directors of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty. However, the
provision does not eliminate or limit the liability of a director for breach of
the director's duty of loyalty to the Company or its stockholders, for acts or
omissions not made in good faith or which involve intentional misconduct or a
knowing violation of law, for the payment of dividends or distributions or the
redemption or purchase of the Company's shares of stock in violation of the
DGCL, or for any transaction from which the
3
<PAGE> 4
director derives an improper personal benefit. This provision does not affect
any liability of a director or officer under the federal securities laws.
The Company currently maintains directors' and officers' liability
insurance ("D&O Insurance") and expects to continue to carry D&O Insurance in
the future. In addition, the Company has entered into an indemnification
agreement with each of its directors ("Indemnification Agreements") under which
the Company has indemnified each of them against expenses and losses incurred
for claims brought against them by reason of being a director or officer of the
Company. Under the Indemnification Agreements, the Company is not obligated to
indemnify the director for expenses or losses in connection with claims
("Excluded Claims") that have been determined by final adjudication to be: (i)
based on the director gaining any unentitled personal profit or advantage; (ii)
for the return of illegal remuneration; (iii) for an accounting of profits made
from the director's purchase or sale of the Company's securities within the
meaning of Section 16 of the Securities Exchange Act of 1934 or similar state
laws; (iv) resulting from the director's knowingly fraudulent, dishonest, or
willful misconduct; (v) the payment of which by the Company pursuant to the
Indemnification Agreement is not permitted by applicable law; (vi) as to which
the director shall have been adjudged liable to the Company, unless the court
determines that the director is fairly and reasonably entitled to
indemnification; or (vii) the payment of which would exceed the maximum amount
permitted by law to be paid as indemnification. Under the Indemnification
Agreements, the directors each agree to reimburse the Company for amounts paid
to them in the event that a final adjudication determines that the claim is
either an Excluded Claim or the director is not otherwise entitled to payment
under the Indemnification Agreement.
The Company believes that the limitation of liability and
indemnification provisions in the Certificate of Incorporation, the D&O
Insurance and the indemnification agreements will enhance the Company's ability
to continue to attract and retain qualified individuals to serve as directors
and officers. There is no pending litigation or proceeding involving a director,
officer or employee of the Company to which the Indemnification Agreements would
apply.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
Exhibit Index located at Page 8.
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
4
<PAGE> 5
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
5
<PAGE> 6
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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, and the State of Arizona, on this 5th day of
March, 1998.
Viasoft, Inc.
By: /s/ Steven D. Whiteman
--------------------------------------------
Steven D. Whiteman
President and Chief Executive Officer
6
<PAGE> 7
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Steven D. Whiteman Chief Executive Officer March 5, 1998
- --------------------------------------------- and Director
Steven D. Whiteman
/s/ Mark R. Schonau Chief Financial Officer March 5, 1998
- ---------------------------------------------
Mark R. Schonau
* /s/ John J. Barry III Director March 5, 1998
- ---------------------------------------------
John J. Barry III
* /s/ Alexander S. Kuli Director March 5, 1998
- ---------------------------------------------
Alexander S. Kuli
* /s/ J. David Parrish Director March 5, 1998
- ---------------------------------------------
J. David Parrish
* /s/ Arthur C. Patterson Director March 5, 1998
- ---------------------------------------------
Arthur C. Patterson
</TABLE>
*By /s/ Steven D. Whiteman
----------------------
Steven D. Whiteman
Attorney-in-Fact
7
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE OR
NUMBER DESCRIPTION METHOD OF FILING
<S> <C> <C>
4.1 Viasoft, Inc. 1997 Equity Incentive Plan, as amended Page 9
and restated
4.2 Restated Certificate of Incorporation, as amended Incorporated by reference to Exhibit
3.1(b) of the Company's quarterly
report on Form 10-Q for the period
ended December 31, 1997.
4.3 Amended and Restated Bylaws Incorporated by reference to Exhibit
3(e) of S-1 #33-88366
4.4 Form of Certificate for Common Stock Incorporated by reference to Exhibit
4(a) of S-1 #33-88366
5 Opinion of Catherine R. Hardwick, General Counsel for Page 26
the Registrant (including consent)
23.1 Consent of Independent Public Accountants Page 27
23.2 Consent of Counsel See Exhibit 5
24.1 Power of Attorney of John J. Barry III Page 28
24.2 Power of Attorney of Alexander S. Kuli Page 30
24.3 Power of Attorney of J. David Parrish Page 32
24.4 Power of Attorney of Arthur C. Patterson Page 34
</TABLE>
8
<PAGE> 1
VIASOFT, INC.
1997 EQUITY INCENTIVE PLAN
(AMENDED AND RESTATED)
JANUARY 21, 1998
EXHIBIT 4.1
<PAGE> 2
VIASOFT, INC.
1997 EQUITY INCENTIVE PLAN
(AMENDED AND RESTATED JANUARY 21, 1998)
ARTICLE 1: PURPOSE.
1.1 General. The purpose of the Viasoft, Inc. 1997 Equity Incentive
Plan (the "Plan") is to promote the interests of Viasoft, Inc. (the "Company"),
by enabling the Company to motivate, attract, and retain the services of persons
upon whose judgment, efforts, and contributions the success of the Company's
business depends. The plan is further intended to align the personal interests
of such persons with the interests of stockholders of the Company through equity
participation in the Company's growth and success. Capitalized terms not
otherwise defined in the text are defined in Article 15.
ARTICLE 2: EFFECTIVE DATE; TERM.
2.1 Effective Date. The Plan shall become effective at the date and
time of its approval by the stockholders of the Company (the "Effective Date").
The Plan shall be submitted to the stockholders of the Company for their
approval at the 1997 Annual Meeting of the Company.
2.2 Term. This Plan shall terminate on the tenth (10th) anniversary of
the Effective Date, subject to Article 12.
ARTICLE 3: SHARES SUBJECT TO THE PLAN.
3.1 Number of Shares. The maximum number of shares of Stock reserved
and available for delivery pursuant to Awards or which may be used to provide a
basis of measurement or valuation of an Award shall be equal to the sum of (a)
850,000 shares, plus (b) any shares of Stock available for future awards under
the Predecessor Plan as of the Effective Date, plus (c) the additional shares of
Stock described below in this Article 3. No additional grants shall be made
under the Predecessor Plan after the Effective Date. The limitations of this
Article 3 shall be subject to adjustment as provided in Section 11.1.
3.2 Lapsed Awards. To the extent that an Award under the Plan or the
Predecessor Plan is forfeited, terminates, expires or lapses for any reason, any
shares of Stock subject to the Award will again be available for the grant of an
Award under the Plan. To the extent any shares of Stock covered by an Award are
not delivered to a Participant or beneficiary because the Award is forfeited,
terminates, expires or lapses for any reason, or the shares of Stock are not
delivered because the Award is settled in cash, such shares shall not be deemed
to have been delivered for purposes of determining the maximum number of shares
of Stock available for delivery under the Plan.
<PAGE> 3
3.3 Payments in Stock. Any shares of Stock tendered (by delivery or
attestation) to the Company in connection with payment for Stock purchased
pursuant to the Plan or any Predecessor Plan or payment of withholding taxes
with respect to any Award shall be added back to the aggregate number of shares
reserved and available for Awards under the Plan and only the number of shares
of Stock issued net of the number of shares tendered shall be deemed delivered
for purposes of determining the maximum number of shares of Stock available for
delivery under the Plan.
3.4 Limitations. Subject to adjustment as provided in Section 11.1, the
following additional limitations apply under the Plan:
(a) The maximum number of shares of Stock that may be
delivered pursuant to Awards of Incentive Stock Options shall be
850,000 shares.
(b) The maximum number of shares of Stock that may be subject
to Awards of Options or Restricted Stock granted to any one Participant
in a single fiscal year of the Company shall be 250,000 shares;
provided, that the maximum number of shares of Stock that may be
subject to Awards of Options or Restricted Stock granted to a
Participant during the fiscal year of the Company during which his or
her service first commences shall be 500,000 shares.
(c) The maximum payment that can be made for Awards granted to
any one individual pursuant to Section 8 (Stock-Reference Awards) shall
be $500,000 for any single or combined performance goal established for
any annual performance. If an Award granted under Section 8 is, at the
time of grant, denominated in shares, the value of the shares of Stock
for determining this maximum individual payment amount will be the Fair
Market Value of the share of Stock on the first day of the applicable
performance period.
3.5 Stock Distributed. Any Stock distributed pursuant to an Award may
consist, in whole or in part, of authorized and unissued Stock, treasury Stock,
or Stock purchased on the open market.
ARTICLE 4: ELIGIBILITY.
4.1 General. Awards may be granted only to an individual who is an
officer, director or other employee (including employees who also are directors
or officers), consultant, independent contractor, or adviser of the Company or a
Subsidiary, and to other individuals the Company or a Subsidiary proposes to
engage in one of the foregoing capacities, as determined by the Committee.
ARTICLE 5: ADMINISTRATION.
5.1 Committee. The Plan shall be administered by a Committee of the
Board that is appointed by, and shall serve at the discretion of, the Board. The
Committee shall consist of
2
<PAGE> 4
two or more individuals, each of whom is a member of the Board and neither of
whom is an officer or employee of the Company.
5.2 Authority of Committee. The Committee has the exclusive power,
authority, and discretion to:
(a) Designate Participants;
(b) Determine the type or types of Awards to be granted to
each Participant;
(c) Determine the number of Awards to be granted and the
number of shares of Stock subject to an Award;
(d) Prescribe the form of each Award Agreement, which need not
be identical for each Participant;
(e) Determine the terms and conditions of any Award granted
under the Plan, including but not limited to, the exercise price, grant
price, or purchase price, any restrictions or limitations on the Award,
any schedule for lapse of forfeiture restrictions or restrictions on
the exercisability of an Award and accelerations or waivers thereof,
any performance criteria, and any modification or amendment of any
Award previously granted, based in each case on such considerations as
the Committee in its sole discretion determines;
(f) Determine whether, to what extent, and under what
circumstances an Award may be settled in, or the exercise price of an
Award may be paid in, cash, Stock, other Awards, or other property, or
an Award may be canceled, forfeited, or surrendered;
(g) Decide all other matters that must be determined in
connection with an Award;
(h) Establish, adopt, or revise any rules and regulations as
it may deem necessary or advisable to administer the Plan;
(i) Interpret the Plan, any Award, and any Award Agreement in
its discretion; and
(j) Make all other decisions and determinations that may be
required under the Plan or as the Committee deems necessary or
advisable to administer the Plan.
5.3 Delegation by Committee. Except to the extent prohibited by
applicable law or the applicable rules of a stock exchange or Nasdaq, the
Committee may allocate all or any portion of its responsibilities and powers to
any one or more of its members and may delegate
3
<PAGE> 5
all or any part of its responsibilities and powers to any person or persons
selected by it. Any such allocation or delegation may be revoked by the
Committee at any time.
5.4 Decisions Binding. All decisions, interpretations, and
determinations by the Committee with respect to the Plan, any Award, and any
Award Agreement are final, binding, and conclusive on all parties.
ARTICLE 6: STOCK OPTIONS.
6.1 General. The Committee is authorized to grant Options to
Participants on the following terms and conditions:
(a) Exercise Price. The exercise price per share of Stock
under an Option shall be determined by the Committee, provided that
such exercise price shall not be less than eight-five percent (85%) of
the Fair Market Value as of the date of grant in the case of a
Non-Qualified Option and one hundred percent (100%) of such Fair Market
Value in the case of an Incentive Stock Option.
(b) Payment. Payment for Stock issued upon exercise of an
Option shall be made in accordance with Article 9 of the Plan.
(c) Time and Conditions of Exercise. The Committee shall
determine the time or times at which an Option may be exercised in
whole or in part; provided, that no Option may be exercisable prior to
six months following the date of the grant of such Option. The
Committee also shall determine the expiration date of each Option and
the performance or other conditions, if any, that must be satisfied
before all or part of an Option may be exercised. The Committee may
provide in any Award Agreement with respect to an Option for expiration
prior to its expiration date, or for accelerated exercisability, in the
event of the Participant's death, disability, retirement, termination
of service, or other events.
(d) Evidence of Option. All Options shall be evidenced by a
written Award Agreement between the Company and the Participant. The
Award Agreement shall include such provisions as may be specified by
the Committee. The Award Agreement shall specify whether the Option is
an Incentive Stock Option or a Non-Qualified Option.
6.2 Incentive Stock Options. The terms of any Incentive Stock Options
granted under the Plan must comply with the following additional rules:
(a) Exercise Price. The exercise price per share of Stock
shall be set by the Committee, provided that the exercise price for any
Incentive Stock Option may not be less than the Fair Market Value as of
the date of the grant.
4
<PAGE> 6
(b) Exercise. In no event may any Incentive Stock Option be
exercisable for more than ten years from the date of its grant.
(c) Individual Dollar Limitation. The aggregate Fair Market
Value (determined as of the time an Award is made) of all shares of
Stock with respect to which Incentive Stock Options are first
exercisable by a Participant in any calendar year may not exceed
$100,000.00. Any Options granted that exceed this threshold shall be
automatically deemed Non-Qualified Options.
(d) Ten Percent Owners. An Incentive Stock Option may be
granted to a Ten Percent Owner, provided that at the time such option
is granted the exercise price per share of Stock shall not be less than
110% of the Fair Market Value and such option by its terms is not
exercisable after the expiration of five (5) years from the date of its
grant.
(e) Expiration of Incentive Stock Options. No Award of an
Incentive Stock Option may be made pursuant to this Plan after the
expiration of ten (10) years from the Effective Date.
(f) Right to Exercise. During a Participant's lifetime, an
Incentive Stock Option may be exercised only by the Participant.
(g) Employees Only. Only common law employees of the Company
or a Subsidiary are eligible to receive Incentive Stock Options.
ARTICLE 7: RESTRICTED STOCK AWARDS.
7.1 Restricted Stock Awards. The Committee is authorized to make Awards
of Restricted Stock to Participants either in the form of a grant of Stock or an
offer to sell Stock to a Participant, in such amounts and subject to such terms,
conditions and restrictions as may be selected by the Committee. All Awards of
Restricted Stock shall be evidenced by an Award Agreement. An Award Agreement
may specify whether, and to what extent, holders of Restricted Stock Awards
shall have voting, dividend and other rights of holders of Stock.
7.2 Issuance and Restrictions. Restricted Stock shall be subject to
such restrictions on transferability and other restrictions, including without
limitation "vesting" or forfeiture restrictions, as the Committee may impose.
These restrictions may lapse separately or in combination at such times, under
such circumstances, in such installments, or otherwise, as the Committee
determines at the time of the grant of the Award or thereafter.
7.3 Forfeiture. Except as otherwise determined by the Committee at the
time of the grant of the Award or thereafter, upon termination of employment
during the applicable restriction period, Restricted Stock that is at that time
subject to restrictions shall be forfeited and reacquired by the Company;
provided, however, that the Committee may provide in any Award Agreement that
restrictions or forfeiture conditions relating to Restricted Stock will be
5
<PAGE> 7
waived in whole or in part in specified circumstances, and the Committee may in
other cases waive in whole or in part restrictions or forfeiture conditions
relating to Restricted Stock.
7.4 Payment and Certificates for Restricted Stock. If a Restricted
Stock Award provides for the purchase of Stock by a Participant, payment shall
be made pursuant to Article 9 of the Plan. Restricted Stock granted under the
Plan may be evidenced in such manner as the Committee shall determine. To the
extent that an Award is granted in the form of newly issued Restricted Stock,
the Award recipient, as a condition to the grant of such Award, shall be
required to pay the Company in cash, cash equivalents or other legal
consideration an amount equal to the par value of such Restricted Stock. To the
extent that an Award is granted in the form of Restricted Stock from the
Company's treasury, no cash consideration shall be required of the Award
recipients. If certificates representing shares of Restricted Stock are
registered in the name of the Participant, certificates must bear an appropriate
legend referring to the terms, conditions, and restrictions applicable to such
Restricted Stock, and the Company shall retain physical possession of the
certificate until such time as all applicable restrictions lapse.
7.5 Restrictions on Restricted Stock Awards. Each Restricted Stock
Award shall be subject to such conditions, restrictions and contingencies as the
Committee shall determine. These may include continuous service and/or the
achievement of performance goals. The performance goals that may be used by the
Committee for such Awards may be based on one or more business criteria that
apply to the individual participant, a business unit of the Company, a
Subsidiary or the Company as a whole, and/or performance as compared with that
of other publicly-traded companies. Such criteria may include, but are not
limited to, stock price, market share, sales, earnings, earnings per share,
return on equity, or costs. The Committee may designate a single performance
goal criterion, or multiple performance goal criteria.
ARTICLE 8: STOCK-REFERENCE AWARDS.
8.1 Grant of Stock-Reference Awards. The Committee is authorized,
subject to limitations under applicable law, to grant to Participants such other
Awards that are payable in, valued in whole or in part by reference to, or
otherwise based on or related to shares of Stock, as deemed by the Committee to
be consistent with the purposes of the Plan, including without limitation shares
of Stock awarded purely as a "bonus" and not subject to any restrictions or
conditions, other rights convertible or exchangeable into shares of Stock, and
awards valued by reference to book value of shares of Stock or the value of
securities of or the performance of specified divisions or Subsidiaries of the
Company.
8.2 Restrictions on Stock-Reference Awards. Each Stock-Reference Award
shall be subject to such conditions, restrictions and contingencies as the
Committee shall determine. These may include continuous service and/or the
achievement of performance goals. The performance goals that may be used by the
Committee for such Awards may be based on one or more business criteria that
apply to the individual participant, a business unit of the Company, a
Subsidiary or the Company as a whole, and/or performance as compared with that
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<PAGE> 8
of other publicly-traded companies. Such criteria may include, but are not
limited to, stock price, market share, sales, earnings, earnings per share,
return on equity, or costs. The Committee may designate a single performance
goal criterion, or multiple performance goal criteria.
ARTICLE 9: PAYMENT FOR STOCK PURCHASES; WITHHOLDING TAXES;
RELOAD OPTIONS.
9.1 Payment. Payment for Stock purchased pursuant to the Plan may be
made in cash (by check) or, where expressly approved for the Participant by the
Committee in an Award Agreement (or otherwise in writing where permitted by
law):
(a) by cancellation of indebtedness of the Company to the
Participant;
(b) by surrender of (or attestation to the ownership of)
Stock, valued at Fair Market Value on the date new Stock is purchased
under the Plan; provided, however, that such surrender or attestation
shall not be permitted if such action would cause the Company to
recognize compensation expense (or additional compensation expense)
with respect to the Award for financial reporting purposes;
(c) by tender of a full recourse promissory note having such
terms as may be approved by the Committee, secured by the Stock
purchased, and bearing interest at a rate sufficient to avoid
imputation of income under Sections 482 and 1274 of the Code; provided,
however, that Participants who are not employees of the Company shall
not be entitled to purchase Stock with a promissory note unless the
note is adequately secured by collateral other than the Stock;
provided, further, that in the case of newly issued shares of Stock,
the portion of the Purchase Price equal to the par value of the Stock,
if any, must be paid in cash or other legal consideration;
(d) by waiver of compensation due or accrued to Participant
for services rendered;
(e) by tender of property acceptable to the Committee;
(f) with respect only to purchases upon exercise of an Option,
and provided that a public market for the Company's stock then exists:
(1) through a "same day sale" commitment from
Participant and a broker-dealer that is a member of the
National Association of Securities Dealers (a "NASD Dealer")
whereby Participant irrevocably elects to exercise the Option
and to sell a portion of the Stock so purchased to pay for the
exercise price and any applicable withholding taxes, and
whereby the NASD Dealer irrevocably commits upon receipt of
such Stock to forward the exercise price and any such
withholding taxes directly to the Company;
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<PAGE> 9
(2) through a "margin" commitment from Participant
and a NASD Dealer whereby Participant irrevocably elects to
exercise the Option and to pledge the Stock so purchased to
the NASD Dealer in a margin account as security for a loan
from the NASD Dealer in the amount of the exercise price and
any applicable withholding taxes, and whereby the NASD Dealer
irrevocably commits upon receipt of such Stock to forward the
exercise price and any such withholding taxes directly to the
Company; or
(3) through any other "cashless exercise" procedure
approved by the Committee; or
(g) by any combination of the foregoing.
9.2 Loan Guarantees. The Committee may help the Participant pay for
Shares purchased under the Plan by authorizing a guarantee by the Company of a
third-party loan to the Participant.
9.3 Tax Withholding. The Company or any Subsidiary shall have the
authority and the right to deduct or withhold, or require a Participant to remit
to the Company, an amount sufficient to satisfy federal, state and local taxes
(including the Participant's FICA obligation) required by law to be withheld
with respect to any taxable event arising as a result of this Plan. Whenever,
under the Plan, payments in satisfaction of Awards are to be made in cash, such
payment shall be net of an amount sufficient to satisfy federal, state and local
withholding tax requirements. With respect to withholding required upon any
taxable event relating to the issuance of Stock under the Plan, Participants may
elect, subject to the Committee's approval and any rules or policies adopted by
the Committee from time to time, to satisfy the withholding requirement, in
whole or in part, by having the Company or any Subsidiary withhold shares of
Stock having a Fair Market Value on the date of withholding equal to the amount
to be withheld for tax purposes. The Committee may, at the time any Award is
granted, require that any and all applicable tax withholding requirements be
satisfied by the withholding of shares of Stock as set forth above.
9.4 Reload Options. Award Agreements may contain a provision pursuant
to which a Participant who pays all or a portion of the exercise price of an
Option or the tax required to be withheld pursuant to an exercise of an Option
by surrendering shares of Stock pursuant to Sections 9.1 or 9.3, respectively,
shall be automatically granted an Option for the purchase of Stock equal to the
number of shares surrendered (a "Reload Option"). The grant of the Reload Option
shall be effective on the date the Participant surrenders the shares of Stock in
respect of which the Reload Option is granted (the "Reload Date"). The Reload
Option shall have an exercise price equal to the Fair Market Value of the Stock
on the Reload Date, and shall have a term which is no longer, and which shall
lapse no later, than the original term of the underlying option. If stock
otherwise available under an Incentive Stock Option is withheld pursuant to
Section 9.3, any Reload Option granted in connection with the withholding shall
be treated as a new Incentive Stock Option, subject to the rules set forth in
Section 6.2.
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ARTICLE 10: ADDITIONAL PROVISIONS APPLICABLE TO AWARDS.
10.1 Stand-Alone, Tandem, and Substitute Awards. Awards granted under
the Plan may, in the discretion of the Committee, be granted either alone or in
addition to, in tandem with, or in substitution for, any other Award granted
under the Plan. Awards granted in addition to or in tandem with other Awards may
be granted either at the same time as or at a different time from the grant of
such other Awards.
10.2 Exchange Provisions. The Committee may at any time offer to
exchange or buy out any previously granted Award for a payment in cash, Stock,
or another Award, based on the terms and conditions the Committee determines and
communicates to the Participant at the time the offer is made.
10.3 Term of Award. The term of each Award shall be for the period as
determined by the Committee, provided that in no event shall the term of any
Incentive Stock Option or a Stock Appreciation Right granted in tandem with the
Incentive Stock Option exceed a period of ten years from the date of its grant.
10.4 Form of Payment for Awards. Subject to the terms of the Plan and
any applicable law or Award Agreement, payments or transfers to be made by the
Company or a Subsidiary on the grant or exercise of an Award may be made in such
forms as the Committee determines at or after the time of grant, including
without limitation, cash, Stock, other Awards, or other property, or any
combination, and may be made in a single payment or transfer, in installments,
or on a deferred basis, in each case determined in accordance with rules adopted
by, and at the discretion of, the Committee.
10.5 Limits on Transfer. No right or interest of a Participant in any
Award may be pledged, encumbered, or hypothecated to or in favor of any party
other than the Company or a Subsidiary, or shall be subject to any lien,
obligation, or liability of such Participant to any other party other than the
Company or a Subsidiary. Except as otherwise provided below, no Award shall be
assignable or transferable by a Participant other than by will, beneficiary
designation or the laws of descent and distribution or, except in the case of an
Incentive Stock Option, pursuant to a qualified domestic relations order as
defined in Section 414(p)(1)(A) of the Code or Title I of the Employee
Retirement Income Security Act, or the rules thereunder. The Committee may
determine and specify in any Award Agreement for an Award other than an Award
that includes an Incentive Stock Option, at the time of granting an Award or
thereafter, that a Participant may assign or otherwise transfer all or a portion
of the rights represented by the Award to specified individuals or classes of
individuals, or to a trust benefiting such individuals or classes of
individuals, or to a partnership or other entity in which all partners or equity
owners are such individuals, subject to such restrictions, limitations, or
conditions as the Committee deems to be appropriate.
10.6 Stock Certificates. All Stock certificates delivered under the
Plan are subject to any stop-transfer orders and other restrictions as the
Committee deems necessary or advisable
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<PAGE> 11
to comply with federal or state securities laws, rules, and regulations and the
rules of any national securities exchange or automated quotation system on which
the Stock is listed, quoted, or traded. The Committee may place legends on any
Stock certificate to reference restrictions applicable to the Stock.
ARTICLE 11: CHANGES IN CAPITAL STRUCTURE; CHANGE OF CONTROL.
11.1 General; Adjustments. In the event of a subdivision of the
outstanding Stock, a declaration of a dividend payable in Stock, a declaration
of a dividend payable in a form other than Stock in an amount that has a
material effect on the price of the Stock, a combination or consolidation of the
outstanding Stock (by classification or otherwise) into a lesser number of
shares of Stock, a recapitalization, a spin-off or a similar occurrence, the
Committee shall make such adjustments as it, in its sole discretion, deems
appropriate in one or more of (a) the number of shares of Stock available for
future Awards under Article 3, (b) the limitations set forth in Article 3, (c)
the number and kind of shares of Stock covered by each outstanding Award or (d)
the exercise price under each outstanding Option or other Award in the nature of
rights that may be exercised. Except as provided in this Article 11, a
Participant shall have no rights by reason of any issue by the Company of stock
of any class or securities convertible into stock of any class, any subdivision
or consolidation of shares of stock of any class, the payment of any stock
dividend or any other increase or decrease in the number of shares of stock of
any class.
11.2 Dissolution or Liquidation. To the extent not previously
exercised, Awards shall terminate immediately prior to the dissolution or
liquidation of the Company.
11.3 Reorganizations. In the event that the Company is a party to a
merger, consolidation or other reorganization, outstanding Awards shall be
subject to the agreement of merger, consolidation or reorganization. The
Committee shall cause such agreement to provide (a) for the continuation of
outstanding Awards by the Company (if the Company is a surviving corporation),
(b) for their assumption by the surviving corporation or its parent or
subsidiary, (c) for the substitution by the surviving corporation or its parent
or subsidiary of its own awards for such Awards, (d) for accelerated vesting,
accelerated expiration and/or lapse of restrictions, or (e) for settlement in
cash or cash equivalents.
11.4 Effect of Change of Control. The Committee may determine and
specify in any Award Agreement, at the time of granting an Award or thereafter,
that any or all outstanding Options and other Awards in the nature of rights
that may be exercised shall become fully exercisable and any or all restrictions
on other Awards shall lapse, upon the effectiveness of a Change of Control,
subject to the following limitations:
(a) In the case of an Incentive Stock Option, the acceleration
of exercisability shall not occur without the Participant's written
consent.
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(b) If the Company and the other party to the transaction
constituting a Change of Control agree that such transaction is to be
treated as a "pooling of interests" for financial reporting purposes,
and if such transaction in fact is so treated, then the acceleration of
exercisability shall not occur to the extent that the surviving
entity's independent public accountants determine in good faith that
such acceleration would preclude the use of "pooling of interests"
accounting.
ARTICLE 12: AMENDMENT, MODIFICATION, AND TERMINATION.
12.1 Amendment, Modification, and Termination. With the approval of the
Board, at any time and from time to time, the Committee may terminate, amend, or
modify the Plan. An amendment or modification of the Plan shall be subject to
the approval of the Company's stockholders only to the extent required by
applicable laws, regulations and rules.
12.2 Awards Previously Granted. No termination, amendment, or
modification of the Plan shall adversely affect in any material way any Award
previously granted under the Plan, without the written consent of the
Participant.
ARTICLE 13: GENERAL RESTRICTIONS.
13.1 Prohibitions on Awards. The following actions are not permissible
with respect to more than 10% of the total shares authorized under the Plan:
(a) Amending an outstanding Option to decrease the exercise
price;
(b) Issuing a Non-Qualified Option with an exercise price of
less than 100% of Fair Market Value;
(c) Granting Stock Awards that are not subject to any
restrictions or performance conditions unless the award is in lieu of
cash compensation and is valued at Fair Market Value; and
(d) Granting Restricted Stock Awards that are not subject to
either (i) a vesting condition or repurchase option on behalf of the
Company that is measured over not less than three years, or (ii)
performance criteria that must be satisfied prior to vesting and an
additional vesting condition or repurchase option on behalf of the
Company that is measured over not less than one year.
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ARTICLE 14: GENERAL PROVISIONS.
14.1 No Rights to Awards. No Participant or employee shall have any
claim to be granted any Award under the Plan, and neither the Company nor the
Committee is obligated to treat Participants and employees uniformly.
14.2 No Stockholders Rights. No Award gives the Participant any of the
rights of a stockholder of the Company unless and until shares of Stock are in
fact issued to such person in connection with such Award.
14.3 No Right to Employment. Nothing in the Plan or any Award Agreement
shall interfere with or limit in any way the "at will" nature of any
Participant's employment or other relationship with the Company or any
Subsidiary, nor confer upon any Participant any right to continue in the
employment or any other relationship of the Company or any Subsidiary, and the
Company and each Subsidiary reserve the right to terminate any Participant's
employment or other relationship at any time.
14.4 Unfunded Status of Awards. The Plan is intended to be an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant pursuant to an Award, nothing contained
in the Plan or any Award Agreement shall give the Participant any rights that
are greater than those of a general creditor of the Company or any Subsidiary.
14.5 Relationship to Other Benefits. No payment under the Plan shall be
taken into account in determining any benefits under any pension, retirement,
savings, profit sharing, group insurance, welfare or other benefit plan of the
Company or any Subsidiary.
14.6 Expenses. The expenses of administering the Plan shall be borne by
the Company and its Subsidiaries.
14.7 Titles and Headings. The titles and headings of the Articles and
Sections in the Plan are for convenience of reference only, and in the event of
any conflict, the text of the Plan, rather than such titles or headings, shall
control.
14.8 Fractional Shares. No fractional shares of stock shall be issued
and the Committee shall determine, in its discretion, whether cash shall be
given in lieu of fractional shares or whether such fractional shares shall be
eliminated by rounding up.
14.9 Securities Law Compliance. With respect to any person who is, on
the relevant date, obligated to file reports under Section 16 of the Exchange
Act, transactions under this Plan are intended to comply with all applicable
conditions of Section 16 or its successors under the Exchange Act. To the extent
any provision of the Plan or any Award Agreement or any action by the Committee
fails to so comply, it shall be void to the extent required by law and voidable
as deemed advisable by the Committee.
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14.10 Government and Other Regulations. The obligation of the Company
to make payment of awards in Stock or otherwise shall be subject to all
applicable laws, rules, and regulations, and to such approvals by government
agencies as may be required. The Company shall be under no obligation to
register under the Securities Act any of the shares of Stock paid under the
Plan. The Company may restrict the issuance or transfer of such shares in such
manner as it deems advisable to ensure the satisfaction of all legal
requirements relating to their registration, qualification or listing or any
exemption therefrom.
14.11 Governing Law. The Plan and all Award Agreements shall be
construed in accordance with and governed by the laws of the State of Delaware.
14.12 Foreign Jurisdictions. The following additional provisions shall
apply to Awards and administration of the Plan in jurisdictions other than the
United States:
(a) The Committee shall have full power and authority to
establish a set of rules ("sub-plan rules") applicable to Awards
granted in the United Kingdom, France or in any other particular
jurisdiction for the purpose of permitting Awards granted pursuant to
such sub-plan rules in that jurisdiction to qualify for favorable local
tax treatment. Such sub-plan rules, which may be more restrictive than
the provisions of the Plan which would otherwise apply, shall be
applicable only with respect to Awards granted to Participants in the
jurisdiction covered by any such sub-plan rules. Without limiting the
generality of the foregoing, such sub-plan rules may specify more
restrictive eligibility requirements than otherwise specified in the
Plan, may prescribe a specific vesting schedule, may prescribe a
shorter Award term than otherwise permitted under the Plan, or may
specify a higher minimum Award price than otherwise set forth in the
Plan. Stock issued pursuant to such Awards shall nonetheless be counted
against the maximum number of shares specified in the Plan and such
Awards and shares shall otherwise be governed by the provisions of this
Plan and the instrument evidencing such Award, except as amended
pursuant to the relevant sub-plan rules.
(b) 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 conversion of local currency, withholding procedures and
handling of stock certificates which vary with local requirements.
14.13 Nonexclusivity of the Plan. Neither the adoption of the Plan nor
the submission of the Plan to the stockholders of the Company for approval shall
be construed as creating any limitations upon the right and authority of the
Board to adopt such other incentive compensation arrangements (which
arrangements may be applicable either generally to a class or classes of
individuals or specifically to a particular individual or individuals) as the
Board in its discretion determines desirable, including, without limitation, the
granting of stock options or other rights otherwise than under the Plan.
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ARTICLE 15: DEFINITIONS.
15.1 Definitions. The following words and phrases shall have the
following meanings for purposes of this Plan:
(a) "Award" means any Option, Restricted Stock Award, or
Stock-Reference Award, or any other right or interest relating to
Stock, cash or property, granted to a Participant under the Plan.
(b) "Award Agreement" means any written agreement, contract,
or other instrument or document evidencing an Award.
(c) "Board" means the Board of Directors of the Company.
(d) "Change of Control" means and includes each of the
following:
(1) Any transaction or series of transactions,
whereby any person (as that term is used in Section 13 and
14(d)(2) of the Exchange Act), is or becomes the beneficial
owner (as that term is used in Section 13(d) of the Exchange
Act) directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the
Company's then outstanding securities; provided, that for
purposes of this paragraph, the term "person" shall exclude
(i) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or of a Subsidiary and
(ii) a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same
proportions as their ownership of the common stock of the
Company.
(2) Any merger, consolidation, or liquidation of the
Company in which the Company is not the continuing or
surviving corporation or pursuant to which Stock would be
converted into cash, securities, or other property, other than
(i) a merger or consolidation with a wholly owned Subsidiary,
(ii) a reincorporation of the Company in a different
jurisdiction, or (iii) other transaction in which there is no
substantial change in the stockholders of the Company, where
in the case of (i), (ii) or (iii) all then outstanding Awards
are assumed by the successor corporation, which assumption
shall be binding on all Participants;
(3) Any merger or consolidation of the Company with
or into another entity or any other corporate reorganization,
if more than 50% of the combined voting power of the
continuing or surviving entity's securities outstanding
immediately after such merger, consolidation or other
reorganization is owned by persons who were not stockholders
of the Company immediately prior to such merger, consolidation
or other reorganization.
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(4) The sale, transfer, or other disposition of all
or substantially all of the assets of the Company.
(5) A change in the composition of the Board, as a
result of which fewer than 50% of the incumbent directors are
directors who either (i) had been directors of the Company on
the date 24 months prior to the date of the event that may
constitute a Change of Control (the "original directors") or
(ii) were elected, or nominated for election, to the Board
with the affirmative votes of at least a majority of the
aggregate of the original directors who were still in office
at the time of the election or nomination and the directors
whose election or nomination was previously so approved.
A transaction shall not constitute a Change of Control if its
sole purpose is to change the state of incorporation of the Company or
to create a holding company that will be owned in substantially the
same proportions by the persons who held the Company's securities
immediately before such transaction.
(e) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(f) "Committee" means the committee of the Board described in
Article 5.
(g) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(h) "Fair Market Value" means with respect to Stock or any
other property, the fair market value of such Stock or other property
determined by such methods or procedures as may be established from
time to time by the Committee. Unless otherwise determined by the
Committee, the Fair Market Value of Stock as of any date shall be the
closing price for the Stock as reported on the Nasdaq National
Market(or on any national securities exchange on which the Stock is
then listed) for that date or, if no closing price is so reported for
that date, the closing price on the next preceding date for which a
closing price was reported.
(i) "Incentive Stock Option" means an Option that is intended
to meet the requirements of Section 422 of the Code or any successor
provision thereto.
(j) "Non-Qualified Stock Option" means an Option that is not
intended to be an Incentive Stock Option.
(k) "Option" means a right granted to a Participant under
Article 6 of the Plan to purchase Stock at a specified price during
specified time periods. An Option may be either an Incentive Stock
Option or a Non-Qualified Stock Option.
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(l) "Participant" means a person who, as an officer, director,
employee, consultant, independent contractor, or adviser of the Company
or any Subsidiary, has been granted an Award under the Plan.
(m) "Predecessor Plan" means the 1994 Equity Incentive Plan of
the Company.
(n) "Plan" means the Viasoft, Inc. 1997 Equity Incentive Plan,
as amended from time to time.
(o) "Restricted Stock Award" means Stock granted to a
Participant or offered for sale to a Participant under Article 7.
(p) "Securities Act" means the Securities Act of 1933, as
amended.
(q) "Stock" means the common stock of the Company and such
other securities of the Company that may be substituted for Stock
pursuant to Article 11.
(r) "Stock-Reference Award" means a right, granted to a
Participant under Article 8.
(s) "Subsidiary" means any corporation of which a majority of
the outstanding voting stock or voting power is beneficially owned
directly or indirectly by the Company.
(t) "Ten Percent Owner" means any individual who, at the date
of grant of an Incentive Stock Option, owns stock possessing more than
ten percent of the total combined voting power of all classes of Stock
of the Company or a Subsidiary. For purposes of determining such
percentage, the following rules shall apply:
(1) the individual with respect to whom such
percentage is being determined shall be considered as owning
the Stock owned, directly or indirectly, by or for his
brothers and sisters (whether by the whole or half blood),
spouse, ancestors, and lineal descendants; and
(2) Stock owned, directly or indirectly, by or for a
corporation, partnership, estate, or trust, shall be
considered as being owned proportionately by or for its
stockholders, partners, or beneficiaries.
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<PAGE> 1
March 5, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Viasoft, Inc. 1997 Equity Incentive 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 850,000 shares of the Company's Common Stock,
par value $.001 per share (the "Shares"), issuable pursuant to the Viasoft, Inc.
1997 Equity Incentive Plan (the "1997 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 1997 Plan, will be validly
issued, fully paid and nonassessable.
As set forth in the Explanatory Note included in the Registration
Statement, the Registration Statement is also deemed to cover up to an
additional 1,167,758 shares of the Company's Common Stock available under the
Viasoft, Inc. 1994 Equity Incentive Plan (the "1994 Plan"), including (i) 28,446
shares of the Company's Common Stock registered but not issued in connection
with the 1994 Plan, and (ii) shares of the Company's Common Stock subject to
awards under the 1994 Plan that are forfeited, terminate, expire or lapse for
any reason.
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
EXHIBIT 5
<PAGE> 1
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 29, 1997
(except with respect to the matter discussed in Note 11, as to which the date is
September 22, 1997), included in VIASOFT, Inc.'s Form 10-K for the year ended
June 30, 1997, and to all references to our firm included in this registration
statement.
ARTHUR ANDERSEN LLP
Phoenix, Arizona,
February 27, 1998.
EXHIBIT 23.1
<PAGE> 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 up to
850,000 shares of Common Stock (the "Shares") issuable under the 1997 Equity
Incentive Plan, as amended and restated, 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 21st day of January, 1998.
/s/ John J. Barry III
Director (Signature)
John J. Barry III
Director (Print Name)
Witness:/s/ Catherine R. Hardwick
EXHIBIT 24.1
<PAGE> 2
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this 21st day of January, 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
<PAGE> 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 up to
850,000 shares of Common Stock (the "Shares") issuable under the 1997 Equity
Incentive Plan, as amended and restated, 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 28th day of January, 1998.
/s/ Alexander S. Kuli
Director (Signature)
Alexander S. Kuli
Director (Print Name)
Witness: /s/ Catherine R. Hardwick
EXHIBIT 24.2
<PAGE> 2
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this 28th day of January, 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
<PAGE> 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 up to
850,000 shares of Common Stock (the "Shares") issuable under the 1997 Equity
Incentive Plan, as amended and restated, 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 21st day of January, 1998.
/s/ J. David Parrish
Director (Signature)
J. David Parrish
Director (Print Name)
Witness: /s/ Catherine R. Hardwick
EXHIBIT 24.3
<PAGE> 2
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this 21st day of January, 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
<PAGE> 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 up to
850,000 shares of Common Stock (the "Shares") issuable under the 1997 Equity
Incentive Plan, as amended and restated, 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 29th day of January, 1998.
/s/ Arthur C. Patterson
Director (Signature)
Arthur C. Patterson
Director (Print Name)
Witness: /s/ Catherine R. Hardwick
EXHIBIT 24.4
<PAGE> 2
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this 29th day of January, 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
