-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LifYftQuxpSk028qQsa5MoYJG6n2fAr9f5XEx9Dlx8z75W4uCGL9koBsjQkOp0qW WZW9/8hoi4dR4DU/VnuIzA== 0000950172-02-000876.txt : 20020501 0000950172-02-000876.hdr.sgml : 20020501 ACCESSION NUMBER: 0000950172-02-000876 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 20020501 EFFECTIVENESS DATE: 20020501 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ASCENTIAL SOFTWARE CORP CENTRAL INDEX KEY: 0000799089 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943011736 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-87396 FILM NUMBER: 02630672 BUSINESS ADDRESS: STREET 1: 50 WASHINGTON STREET CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 6509266300 MAIL ADDRESS: STREET 1: 50 WASHINGTON STREET CITY: WESTBOROUGH STATE: MA ZIP: 01581 FORMER COMPANY: FORMER CONFORMED NAME: INFORMIX CORP DATE OF NAME CHANGE: 19920703 S-8 1 s227002.txt As filed with the Securities and Exchange Commission on May 1, 2002 Registration No. 333- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ASCENTIAL SOFTWARE CORPORATION (Exact name of registrant as specified in its charter) Delaware 94-3011736 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 50 Washington Street Westborough, MA 01581 (Address of principal executive office) (zip code) Torrent Systems Inc. (formerly Applied Parallel Technologies, Inc.) 1995 Equity Incentive Plan Mark Atkins Agreement (Full title of the Plans) Scott N. Semel, Esq. Vice President, Legal, General Counsel and Secretary Ascential Software Corporation 50 Washington Street Westborough, MA 01581 (Name and address of agent for service) (508) 366-3888 (Telephone number, including area code, of agent for service) Copies to: Louis A. Goodman, Esq. Skadden, Arps, Slate, Meagher & Flom LLP One Beacon Street Boston, MA 02108 (617) 573-4800
CALCULATION OF REGISTRATION FEE ============================================================================================================================= Proposed Maximum Proposed Maximum Amount of Title of Securities Amount to be Offering Price Aggregate Offering Registration to be Registered Registered (1) per Share (1) Price Fee (5) - ----------------------------------------------------------------------------------------------------------------------------- Torrent Systems Inc. (formerly Applied Parallel Technologies, Inc.) 1995 Equity 188,265 (2) $1.1312 (3) $212,965.36 (3) $19.59 Incentive Plan Common Stock, par value $.01 per share - ----------------------------------------------------------------------------------------------------------------------------- Mark Atkins Agreement 300,000 $3.44 (4) $1,032,000.00 (4) $94.94 Common Stock, par value $.01 per share ============================================================================================================================= (1) This Registration Statement also covers Common Stock Purchase Rights (the "Rights") which are presently attached to and trade with the common stock of Ascential Software Corporation (the "Registrant"), par value $.01 per share (the "Common Stock"). Any value attributable to the Rights is reflected in the market price of the Common Stock. (2) In accordance with Rule 416 of the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement also includes an indeterminate number of shares that may be subject to issuance as a result of anti-dilution and other provisions of the Torrent Systems Inc. (formerly Applied Parallel Technologies, Inc.) 1995 Equity Incentive Plan (the "Assumed Option Plan"). (3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, the maximum offering price per share for the Assumed Option Plan is based on the weighted average exercise price of the options outstanding under the Assumed Option Plan. (4) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act, the maximum aggregate offering price per share for the Mark Atkins Agreement is based on the average of the high and low sale prices for a share of Common Stock on April 25, 2002 as reported on the Nasdaq National Market. (5) The registration fee has been calculated pursuant to Section 6(b) of the Securities Act by multiplying .000092 by the proposed maximum aggregate offering price (as computed in accordance with Rule 457 under the Securities Act solely for the purpose of determining the registration fee of the securities registered hereby).
EXPLANATORY NOTE Pursuant to the Merger Agreement dated as of November 27, 2001 between the Registrant, Taurus Acquisition Corporation and Torrent Systems Inc., formerly Applied Parallel Technologies, Inc. ("Torrent"), the Registrant acquired a fully diluted 100% interest in Torrent (the "Torrent Acquisition") for $46 million in cash, with Torrent (now known as Ascential Systems, Inc.) becoming a wholly owned subsidiary of the Registrant after the Torrent Acquisition. All outstanding unvested options to purchase common stock of Torrent, par value $.01 per share, granted pursuant to the Assumed Option Plan prior to the Acquisition have been converted into options to purchase Common Stock, subject to appropriate adjustments to the number of shares subject to the option and the exercise price thereof. Each such converted option is otherwise exercisable upon the same terms and conditions as were applicable immediately prior to the Torrent Acquisition. Pursuant to the Merger Agreement dated as of March 12, 2002 between the Registrant, Venus Acquisition Corporation and Vality Technology Incorporated ("Vality"), the Registrant acquired a fully diluted 100% interest in Vality (the "Vality Acquisition") for approximately $92 million in cash, with Vality becoming a wholly owned subsidiary of the Registrant after the Vality Acquisition. In connection with the Vality Acquisition, the Registrant granted 300,000 shares of Common Stock to Mark E. Atkins pursuant to the Restricted Stock Agreement dated as of April 3, 2002 by and between the Registrant and Mark E. Atkins (the "Mark Atkins Agreement"). This Registration Statement is intended to register an aggregate of 515,744 shares of Common Stock, and the Rights associated therewith, that have been or may be issued under the Assumed Option Plan or the Mark Atkins Agreement. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1). Such documents are not being filed with the Securities and Exchange Commission (the "Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The Registrant is subject to the informational and reporting requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Commission. The following documents, which are on file with the Commission, are incorporated in this Registration Statement by reference: (1) Annual Report on Form 10-K for the year ended December 31, 2001 (filing date of April 1, 2002); (2) Current Report on Form 8-K dated March 12, 2002 (filing date of March 21, 2002); (3) The description of Common Stock contained in the Registration Statement on Form 8-A, filed by the Registrant under Section 12 of the Exchange Act and declared effective by the Commission on January 21, 1987, including any amendment or report updating such description of Common Stock; and (4) The description of the Common Stock Purchase Rights contained in the amendment to the Registration Statement filed with the Commission on Form 8-A/A on September 3, 1997, as amended on December 3, 1997 and May 1, 2002. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all shares of Common Stock offered hereby have been sold or which deregisters all shares of Common Stock then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superceded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supercedes such statement. Any statement so modified or superceded shall not be deemed, except as so modified or superceded, to constitute part of this Registration Statement. Item 4. Description of Securities Not Applicable. Item 5. Interests of Named Experts and Counsel Not Applicable. Item 6. Indemnification of Directors and Officers Section 145 of the Delaware General Corporation Law (the "DGCL") provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against amounts paid and expenses incurred in connection with an action or proceeding to which he is or is threatened to be made a party by reason of such position, if such person shall have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal proceeding, if such person had no reasonable cause to believe his conduct was unlawful; provided that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that such indemnification is proper under the circumstances. ARTICLE EIGHT of the Registrant's Restated Certificate of Incorporation (the "Restated Certificate"), provides for the indemnification of any director, officer, employee or agent of the Registrant and certain other persons serving at the request of the Registrant in related capacities to the fullest extent permissible under Delaware law, except that the Registrant is prohibited against the indemnification of any person from or on account of conduct which was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct. ARTICLE EIGHT further provides that, to the fullest extent permissible under Delaware law, no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. ARTICLE VI of the Registrant's Restated Bylaws (the "Bylaws"), provides for the indemnification of each person who was or is made a party or threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative, investigative, or appellate ("Proceeding"), by reason of the fact that he or she is or was a director or officer of the Registrant and certain other persons serving at the request of the Registrant as a director or officer of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such Proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer, against all expenses, liability and loss (including, without limitation, attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith or in connection with the investigation, defense, settlement or appeal of such Proceeding, to the full extent not prohibited by the DGCL. Such indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of his or her heir, executor and administrators. ARTICLE VI further provides that, the Registrant may, to the extent authorized from time to time by its Board of Directors, grant rights to indemnification, and to the advancement of expenses, to any employee or agent of the Registrant to the fullest extent indemnification and advancement of expenses is permitted to directors and officers of the Registrant. ARTICLE VI of the Bylaws further provides that the indemnification provided therein is not exclusive of any other right which such person may have or hereafter acquire under any statute, provision of the Restated Certificate or Bylaws, agreement, vote of stockholders or disinterested directors, insurance policy, or otherwise. Nothing shall limit in any way any right which the Registrant may have to make additional indemnifications with respect to the same or different persons or classes of persons. The Registrant has entered into indemnification agreements with each of its directors and executive officers, and intends to enter into indemnification agreements with any new directors and executive officers in the future. These agreements may require the Registrant, among other things, to indemnify such directors and officers against certain liabilities that may arise by reason of their status or service and to advance their expenses incurred as a result of any Proceeding against them as to which they could be indemnified. The general effect of the foregoing provisions may be to reduce the circumstances in which an officer or director of the Registrant may be required to bear the economic burden of the foregoing liabilities and expenses. The Registrant has purchased directors' and officers' liability insurance which would indemnify the directors and officers of the Registrant against damages arising out of certain kinds of claims which might be made against them based on their negligent acts or omissions while acting in their capacity as such. Item 7. Exemption from Registration Claimed Not Applicable. Item 8. Exhibits The Exhibit Index immediately preceding the exhibits is incorporated herein by reference. 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: (i) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 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 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. 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 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 Westborough, Commonwealth of Massachusetts, on May 1, 2002. ASCENTIAL SOFTWARE CORPORATION By: /s/ Robert McBride ------------------------------ Robert McBride Chief Financial Officer Power of Attorney and Signatures We, the undersigned officers and directors of Ascential Software Corporation hereby severally constitute Peter Gyenes, Robert McBride and Peter Fiore, and each of them individually, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Registration Statement on Form S-8 filed herewith and any and all subsequent amendments to said Registration Statement, and generally to do all such things in our names and behalf in our capacities as officers and directors to enable Ascential Software Corporation to comply with all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by said attorneys, or any of them, to said Registration Statement and any and all amendments thereto. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities indicated on this 1st day of May, 2002. /s/ Peter Gyenes Chief Executive Officer and Chairman of the -------------------- Board of Directors Peter Gyenes /s/ Robert McBride Chief Financial Officer -------------------- Robert McBride /s/ David Ellengerger Director ---------------------- David Ellenberger /s/ John Gavin Director --------------------- John Gavin /s/ James Koch Director --------------------- James Koch /s/ Robert Morrill Director --------------------- Robert Morrill Exhibit Index Exhibit Number Description 3.1 (1) Restated Certificate of Incorporation of the Registrant; 3.2 (1) Restated Bylaws of the Registrant; 4.1 (2) Specimen Common Stock Certificate; 4.2 (3) First Amended and Restated Rights Agreement, dated as of August 12, 1997, between Informix Corporation and BankBoston N.A.; 4.3 (4) Amendment No. 1 to the First Amended and Restated Rights Agreement, dated as of November 17, 1997, between Informix Corporation and BankBoston N.A.; 4.4 (5) Amendment No. 2 to the First Amended and Restated Rights Agreement, dated as of April 26, 2002, between the Registrant and EquiServe Trust Company, N.A.; 4.5 Torrent Systems Inc. (formerly Applied Parallel Technologies, Inc.) 1995 Equity Incentive Plan; 4.6 Torrent Systems Inc. (formerly Applied Parallel Technologies, Inc.) Amendment to 1995 Equity Incentive Plan, adopted by the Board of Directors on September 18, 1996, approved by the Stockholders on September 24, 1996; 4.7 Torrent Systems Inc. (formerly Applied Parallel Technologies, Inc.) Amendment No. 2 to 1995 Equity Incentive Plan, adopted by the Board of Directors on December 29, 1997, approved by the Stockholders on December 29, 1997; 4.8 Torrent Systems Inc. (formerly Applied Parallel Technologies, Inc.) Amendment No. 3 to 1995 Equity Incentive Plan, adopted by the Board of Directors on November 22, 1999, approved by the Stockholders on November 22, 1999; 4.9 Torrent Systems Inc. (formerly Applied Parallel Technologies, Inc.) Amendment No. 4 to 1995 Equity Incentive Plan, adopted by the Board of Directors on February 28, 2001, approved by the Stockholders on March 2, 2001; 4.10 Restricted Stock Agreement dated as of April 3, 2002 by and between the Registrant and Mark E. Atkins; 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP; 23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1); 23.2 Consent of KPMG LLP; 23.3 Consent of Deloitte & Touche LLP; 24.1 Power of Attorney (included in the signature pages of this Registration Statement). - ----------------- (1) Incorporated by reference to an exhibit to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2001, filed with the Commission on April 1, 2002. (2) Incorporated by reference to Exhibit I.1. to Informix's Registration Statement on Form 8-A, filed on January 21, 1987. (3) Incorporated by reference to Exhibit 5 to an amendment to Informix's Registration Statement on Form 8-A/A, filed on September 3, 1997. (4) Incorporated by reference to Exhibit 5.1 to an amendment to Informix's Registration Statement on Form 8-A/A, filed on December 3, 1997. (5) Incorporated by reference to Exhibit 4.4 to an amendment to the Registrant's Registration Statement on Form 8-A/A, filed on May 1, 2002. EX-4 3 bos227175.txt EXHIBIT 4.5 EXHIBIT 4.5 APPLIED PARALLEL TECHNOLOGIES, INC. 1995 EQUITY INCENTIVE PLAN 1. Purpose. The purpose of this plan (the "Plan") is to secure for Applied Parallel Technologies, Inc. (the "Company") and its shareholders the benefits arising from capital stock ownership by employees, officers and directors of, and consultants or advisors to, the Company and its parent and subsidiary corporations who are expected to contribute to the company's future growth and success. Except where the context otherwise required, the term "Company" shall include the parent and all present and future subsidiaries of the Company as defined in Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended or replaced from time to time (the "Code"). 2. Type of Options and Awards; Administration. (a) Types of Options and Awards. Options granted pursuant to the Plan shall be authorized by action of the Board of Directors of the Company (or a Committee designated by the Board of Directors) and may be either incentive stock options ("Incentive Stock Options") meeting the requirements of Section 422 of the code or non-statutory options which are not intended to meet the requirements of Section 422 of the Code ("Non-Statutory Options"). Awards granted pursuant tot the plan shall be authorized by action of the Board of Directors of the Company (or a Committee designated by the Board of Directors) and shall meet the requirements of Section 13 of the Plan. (b) Administration. (i) The Plan will be administered by the Board of Directors of the Company, whose construction and interpretation of the terms and provisions of the Plan shall be final and conclusive. The Board of Directors may in its sole discretion (x) grant options to purchase shares of the Company's Common Stock (as defined in Section 4 of the Plan), and issue shares upon exercise of such options as provided in the Plan and (y) make awards for the purchase of shares of Common Stock pursuant to Section 13 of the Plan. The Board shall have authority, subject to the express provisions of the Plan, to construe the respective option agreements, awards and the Plan, to prescribe, amend and rescind rules and regulations relating to the Plan, to determine the terms and provisions of the respective option agreements and awards, which need not be identical, and to make all other determinations in the judgment of the Board of Directors necessary or desirable for the administration of the Plan. The Board of Directors may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any option agreement or award in the manner and to the extent it shall deem expedient to carry the Plan in to effect and it shall be the sole and final judge of such expediency. No director or person acting pursuant to authority delegated by the Board of Directors shall be liable for any action or determination made in good faith. (ii) The Board of Directors may, to the full extent permitted by or consistent with applicable laws or regulations and Section 3(b) of this Plan, delegate any or all of its powers under the Plan to a committee (the "Committee") appointed by the Board of Directors, and if the Committee is so appointed all references to the Board of Directors in the Plan shall mean and relate to such Committee. Unless all members of the Board of Directors are "outside directors" within the meaning of the Section 162(m) of the Code, as such term is interpreted from time to time, the Board shall appoint such a Committee of two or more directors, all of whom are outside directors, and shall delegate to such Committee all of its powers under the Plan, except that the Board's concurrent approval shall be required for any amendment to the Plan which may be adopted by the Committee; and provided, tat any failure of any director or Committee member to satisfy the definition of outside director shall not invalidate any action taken by the Board or committee with respect to any participant in the Plan, whether or not such person is a "covered employee" within the meaning of Section 162(m) of the Code, as such term is interpreted from time to time. (c) Applicability of Rule 16b-3. Those provisions of the Plan which make express reference to Rule 16b-3 promulgated under the Securities and Exchange Act of 1934 (the "Exchange Act") or, any successor rules ("Rule 16b-3") or which are required in order for certain option transactions to qualify for exemption under Rule 16b-3 shall apply only to such persons as are required to file reports under Section 16(a) of the Exchange Act (a "Reporting Person"). (d) Applicability of Section 162(m). Those provisions of the Plan which are required by or make express reference to Section 162(m) of the Code or any regulations thereunder, or any successor section of the Code or regulations thereunder, or any successor section of the Code or regulations thereunder ("Section 162(m)") shall apply only upon the Company's becoming a company that is subject to Section 162(m). Notwithstanding any provisions in this Plan to the contrary, whenever the Board of Directors is authorized to exercise its discretion in the administration or amendment of this Plan or any option hereunder or otherwise, the Board may not exercise such discretion in a manner that would cause any outstanding option that would otherwise qualify as performance-based compensation under Section 162(m) to fail to so quality under Section 162(m). 3. Eligibility. (a) General. Options and awards may be granted or made to persons who are, at the time of grant, employees, officers or directors (so long as such officers and directors are also employees) of, or consultants or advisors to, the Company; provided, that the class of employees to whom Incentive Stock Options may be granted shall be limited to all employees of the Company; and provided further that from the date on which the Company first has its Common Stock registered under the Exchange Act, non-employee directors of the Company are not eligible to receive options or awards of restricted stock under the Plan. A person who has been granted an option or award may, if he or she is otherwise eligible, be granted additional options or awards if the Board of Directors shall so determine. Subject to adjustment as provided in Section 16 below, the maximum number of shares with respect to which options or awards may be granted to any employee under the Plan in any one calendar year shall not exceed 500,000 shares of common stock. (b) Grant of Options to Directors and Officers. The selection of a director or an officer (as the terms "director" and "officer" are defined for purposes of Rule 16b-3) as a participant, the timing of the option grant or award, the exercise price of the option or the sale price of the award and the number of shares for which an option or award may be granted to such director or officer shall be determined either (i) by the Board of Directors, of which all members shall be "disinterested persons" (as hereinafter defined), or (ii) by a committee of two or more directors having full authority to act in the matter, of which all members shall be "disinterested persons". For the purposes of the Plan, a director shall be deemed to be "disinterested" only if such person qualifies as a "disinterested person" within the meaning of Rule 16b-3, as such term is interpreted from time to time. 4. Stock Subject to Plan. Subject to adjustment as provided in Section 16 below, the total number of shares which may be issued and sold under the Plan is 1,100,000 shares of Common Stock, $.01 par value per share ("Common Stock"). Except as may be prohibited by Rule 16b-3, (i) if an option granted under the Plan shall expire or terminate for any reason without having been exercised in full, the unpurchased shares subject to such option shall again be available for subsequent option grants or awards under the Plan, and (ii) if restricted stock awarded under the Plan shall be repurchased by the Company, the repurchased shares subject to such award shall again be available for subsequent option grants or awards under the Plan. 5. Form of Option Agreements. As a condition to the grant of an option under the Plan, each recipient of an option shall execute an option agreement in such form not inconsistent with the Plan as may be approved by the Board of Directors. Such Option agreements may differ among recipients. 6. Purchase Price Upon Exercise of Options. (a) General. Subject to Section 3(b), the purchase price per share of Common Stock deliverable upon the exercise of an option shall be determined by the Board of Directors, provided, however, that in the case of an Incentive Stock Option, or an option intended to qualify as performance-based compensation within the meaning of Section 162(m), the exercise price shall not be less than 100% of the fair market value of such stock, as determined by the Board of Directors, at the time of grant of such option, or less than 110% of such fair market value in the case of options described in Section 11(b). (b) Payment of Purchase Price. Options granted under the Plan may provide for the payment of the exercise price by delivery of cash or a check to the order of the Company in an amount equal to the exercise price of such options, or, to the extent provided in the applicable option agreement, (i) by delivery to the Company of shares of Common Stock of the Company already owned by the optionee having a fair market value equal in amount to the exercise price of the options being exercised or (ii) by any other means (including without limitation by delivery of a promissory note of the optionee payable on such terms as are specified by the Board of Directors) which the Board of Directors determines are consistent with the purpose of the Plan and with applicable laws and regulations (including, without limitation, the provisions of Rule 16b-3 and Regulation T promulgated by the Federal Reserve board),. The fair market value of any shares of the Company's Common Stock or other non-cash consideration which may be delivered upon exercise of an option shall be determined in such manner as may be prescribed by the Board of Directors. 7. Option Period. Each option and all rights thereunder shall expire on such date as shall be set forth in the applicable option agreement, except that such date, in the case of an Incentive Stock Option, shall in no case be later than ten years after the date on which the option is granted. 8. Exercise of Options. Each option granted under the Plan shall be exercisable either in full or in installments at such time or times and during such period as shall be set forth in the agreement evidencing such option, subject to the provisions of the Plan. 9. Nontransferability of Options. Options shall not be assignable or transferable by the person to whom it is granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the life of the optionee, shall be exercisable only by the optionee; provided, however, that Non-Statutory Options may be transferred pursuant to a qualified domestic relations order (as defined in Rule 16b-3). 10. Effect of Termination of Employment or Other Relationship. The Board of Directors shall determine the period of time during which an optionee may exercise an option following (i) the termination of the optionee's employment or other relationship with the Company or (ii) the death or disability of the optionee. Such periods shall be set forth in the agreement evidencing such option. 11. Incentive Stock Options. Options granted under the Plan which are intended to be Incentive Stock Options shall be subject to the following additional terms and conditions: (a) Express Designation. All Incentive Stock Options granted under the Plan shall, at the time of grant, be specifically designated as such in the option agreement covering such Incentive Stock Options. (b) 10% Shareholder. If any employee to whom an Incentive Stock Option is to be granted under the Plan is, at the time of the grant of such option, the owner of stock possessing more than 10% of the total combined voting power of all classes of stock of the Company (after taking into account the attribution of stock ownership rules of Section 424(d) of the Code), then the following special provisions shall be applicable to the Incentive Stock Option granted to such individual: (i) The purchase price per share of the Common Stock subject to such Incentive Stock Option shall not be less than 110% of the fair market value of one share of Common Stock at the time of grant; and (ii) The option exercise period shall not exceed five years from the date of grant. (c) Dollar Limitation. For so long as the Code shall so provide, options granted to any employee under the Plan (and any other incentive stock option plans of the Company) which are intended to constitute Incentive Stock Options shall not constitute Incentive Stock Options to the extent that such options, in the aggregate, become exercisable for the first time in any one calendar year for shares of Common Stock with an aggregate fair market value (determined as of the respective date or dates of grant) of more than $100,000. (d) Termination of Employment, Death or Disability. No Incentive Stock Option may be exercised unless, at the time of such exercise, the optionee is, and has been continuously since the date of grant of his or her option, employed by the Company, except that : (i) an Incentive Stock Option may be exercised within the period of three months after the date the optionee cases to be an employee of the Company (or within such lesser period as may be specified in the applicable option agreement), provided, that the agreement with respect to such option may designate a longer exercise period and that the exercise after such three-month period shall be treated as the exercise of a non-statutory option under the Plan; (ii) if the optionee dies while in the employ of the Company, or within three months after the optionee ceases to be such an employee, the Incentive Stock Option may be exercised, by the person to whom it is transferred by will or the laws of descent and distribution, within the period of one year after the date of death (or within such lesser period as may be specified in the applicable option agreement); and (iii) if the optionee becomes disabled (within the meaning of Section 22(e)(3) of the Code or any successor provision thereto) while in the employ of the Company, the Incentive Stock Option may be exercised within the period of one year after the date the optionee ceases to be such an employee because of such disability (or within such lesser period as may be specified in the applicable option agreement). For all purposes of the Plan and any option or award granted hereunder, "employment" shall be defined in accordance with the provisions of Section 1.421-7(h) of the Income Tax Regulations (or any successor regulations). Notwithstanding the foregoing provisions, no stock option may be exercised after its expiration date. 12. Additional Provisions. (a) Additional Option Provisions. The Board of Directors may, in its sole discretion, include additional provisions in any option granted under the Plan, including without limitation restrictions on transfer, repurchase rights, commitments to pay cash bonuses, to make, arrange for or guaranty loans or to transfer other property to optionees upon exercise of options, or such other provisions as shall be determined by the Board of Directors; provided that such additional provisions shall not be inconsistent with any other term or condition of the Plan. (b) Acceleration, Extension, Etc. The Board of Directors may, in its sole discretion, (i) accelerate the date or dates on which all or any particular option or options granted under the Plan may be exercised or (ii) extend the dates during which all or any particular option or options granted under the Plan may be exercised. 13. Awards. A restricted stock award ("award") shall consist of the sale and issuance by the Company of shares of Common Stock, and purchase by the recipient of such shares, subject to the terms, conditions and restrictions described in the document evidencing the award and in this Section 13 and elsewhere in the Plan. (a) Execution of Restricted Stock Award Agreement. As a condition to an award under the Plan, each recipient of an award shall execute an agreement in such form, which may differ among recipients, as shall be specified by the Board of Directors at the time of such award. (b) Price. The Board of Directors shall determine the price at which shares of Common Stock shall be sold to recipients of awards under the Plan. The Board of Directors may, in its discretion, issue shares pursuant to awards without the payment of any cash purchase price by the recipients or issue shares pursuant to awards at a purchase price below the then fair market value of the Common Stock. If a purchase price is required to be paid, it shall be paid in cash or by check payable to the order of the Company at the time that the award is accepted by the recipient, or by such other means as may be approved by the Board of Directors. (c) Number of Shares. The award shall specify the number of shares of Common Stock granted thereunder. (d) Restrictions on Transfer. In addition to such other terms, conditions and restrictions upon awards as shall be imposed by the Board of Directors, all shares issued pursuant to an award shall be subject to the following restrictions: (1) All shares of Common Stock subject to an award (including any shares issued pursuant to paragraph (e) of this Section) shall be subject to certain restrictions on disposition and obligations of resale to the Company as provided in subparagraph (2) below for the period specified in the document evidencing the award, and shall not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of until such restrictions lapse. The period during which such restrictions are applicable is referred to as the "Restricted Period". (2) In the event that a recipient's employment with the Company (or consultancy or advisory relationship, as the case may be) is terminated within the Restricted Period, whether such termination is voluntary or involuntary, with or without cause, or because of the death or disability of the recipient, the Company shall have the right and option for a period of three months following such termination to buy for cash that number of the shares of Common Stock purchased under the award as to which the restrictions on transfer and the forfeiture provisions contained in the award have not then lapsed, at a price equal to the price per share originally paid by the recipient. If such termination occurs within the last three months of the applicable restrictions, the restrictions and the repurchase rights of the Company shall continue to apply until the expiration of the Company's three month option period. (3) Notwithstanding subparagraphs (1) and (2) above, the Board of Directors may, in its discretion, either at the time that an award is made or at any time thereafter, waive its right to repurchase shares of Common Stock upon the occurrence of any of the events described in this paragraph (d) or remove or modify any part or all of the restrictions. In addition, the Board of Directors may, in its discretion, impose upon the recipient of an award at the time of such award such other restrictions on any shares of Common Stock issued pursuant to such award as the Board of Directors may deem advisable. (e) Additional Shares. Any shares received by a recipient of an award as a stock dividend on, or as a result of stock splits, combinations, exchanges of shares, reorganizations, mergers, consolidations or otherwise with respect to, shares of Common Stock received pursuant to such award shall have the same status and shall bear the same restrictions, all on a proportionate basis, as the shares initially purchased pursuant to such award. (f) Transfers in Breach of Award. If any transfer of shares purchased pursuant to an award is made or attempted contrary to the terms of the Plan and of such award, the Board of Directors shall have the right to purchase for the account of the Company those shares from the owner thereof or his or her transferee at any time before or after the transfer at the price paid for such shares by the person to whom they were awarded under the Plan. In addition to any other legal or equitable remedies which it may have, the Company may enforce its rights by specific performance to the extent permitted by law. The Company may refuse for any purpose to recognize as a shareholder of the Company any transferee who receives any shares contrary to the provisions of the Plan and the applicable award or any recipient of an award who breaches his or her obligation to resell shares as required by the provisions of the Plan and the applicable award, and the Company may retain and/or recover all dividends on such shares which were paid or payable subsequent to the date on which the prohibited transfer or breach was made or attempted. (g) Additional Award Provisions. The Board of Directors may, in its sole discretion, include additional provisions in any award granted under the Plan, including without limitation commitments to pay cash bonuses, make, arrange for or guarantee loans or transfer other property to recipients upon the grant of awards, or such other provisions as shall be determined by the Board of Directors. 14. General Restrictions. (a) Investment Representations. The Company may require any person to whom an option or award is granted, as a condition of exercising such option or purchasing the shares subject to the award, to give written assurances in substance and form satisfactory to the Company to the effect that such person is acquiring the Common Stock subject to the option or award for his or her own account for investment and not with any present intention of selling or otherwise distributing the same, and to such other effects as the Company deems necessary or appropriate in order to comply with federal and applicable state securities laws. (b) Compliance With Securities Laws. Each option and award shall be subject to the requirement that if, at any time, counsel to the Company shall determine that the listing, registration or qualification of the shares subject to such option or award upon any securities exchange or under any state or federal law, or the consent or approval of any governmental or regulatory body, or that the disclosure of non-public information or the satisfaction of any other condition is necessary as a condition of, or in connection with, the issuance or purchase of shares thereunder, such option or award may not be exercised, in whole or in part, unless such listing, registration, qualification, consent or approval, or satisfaction of such condition shall have been effected or obtained on conditions acceptable to the Board of Directors. Nothing herein shall be deemed to require the Company to apply for or to obtain such listing, registration or qualification, or to satisfy such condition. 15. Rights as a Shareholder. The holder of an option or recipient of an award shall have no rights as a shareholder with respect to any shares covered by the option or award (including, without limitation, any rights to receive dividends or non-cash distributions with respect to such shares) until the date of issue of a stock certificate to him or her for such shares. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued. 16. Adjustment Provisions for Recapitalizations and Related Transactions. (a) General. If, through or as a result of any merger, consolidation, sale of all or substantially all of the assets of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction, (i) the outstanding shares of Common Stock are increased or decreased or are exchanged for a different number or kind of shares or other securities of the Company, or (ii) additional shares or new or different shares or other securities of the Company or other non-cash assets are distributed with respect to such shares of Common Stock or other securities, an appropriate and proportionate adjustment shall be made in (x) the maximum number and kind of shares reserved for issuance under the Plan, (y) the number and kind of shares or other securities subject to then outstanding options under the Plan, and (z) the price for each share subject to any then outstanding options under the Plan or repurchase rights of the Company, without changing the aggregate purchase price as to which such options remain exercisable, provided that no adjustment shall be made pursuant to this Section 16 if such adjustment would cause the Plan to fail to comply with Section 422 of the Code. (b) Board Authority to Make Adjustments. Any adjustments under this Section 16 will be made by the Board of Directors, whose determination as to what adjustments, if any, will be made and the extent thereof will be final, binding and conclusive. No fractional shares will be issued under the Plan on account of any such adjustments. 17. Merger, Consolidation, Asset Sale, Liquidation, etc. (a) General. In the event of a consolidation or merger in which outstanding shares of Common Stock are exchanged for securities, cash or other property of any other corporation or business entity or in the event of a liquidation of the Company or sale of all or substantially all of the assets of the Company, the Board of Directors of the Company, or the board of directors of any corporation assuming the obligations of the Company, may, in its discretion, take any one or more of the following actions, as to outstanding options and awards: (i) provide that such options shall be assumed, or equivalent options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), provided that any such options substituted for Incentive Stock Options shall meet the requirements of Section 424(a) of the Code, (ii) upon written notice to the optionees, provide that all unexercised options will terminate immediately prior to the consummation of such transaction unless exercised by the optionee within a specified period following the date of such notice, (iii) in the event of a merger under the terms of which holders of the Common Stock of the Company will receive upon consummation thereof a cash payment for each share surrendered in the merger (the "Merger Price"), make or provide for a cash payment to the optionees equal to the difference between (A) the Merger Price times the number of shares of Common Stock subject to such outstanding options (to the extent then exercisable at prices not in excess of the Merger Price) and (B) the aggregate exercise price of all such outstanding options in exchange for the termination of such options, and (iv) provide that all or any outstanding options shall become exercisable in full immediately prior to such event. (b) Substitute Options. The Company may grant options under the Plan in subscription for options held by employees of another corporation who become employees of the Company, or a subsidiary of the Company, as the result of a merger or consolidation of the employing corporation with the Company or a subsidiary of the Company, or as a result of the acquisition by the Company, or one of its subsidiaries, of property or stock of the employing corporation. The Company may direct that substitute options be granted on such terms and conditions as the Board of Directors considers appropriate in the circumstances. 18. No Special Employment Rights. Nothing contained in the Plan or in any option or award shall confer upon any recipient of an award or optionee any right with respect to the continuation of his or her employment by the Company or interfere in any way with the right of the Company at any time to terminate such employment or to increase or decrease the compensation of the optionee. 19. Other Employee Benefits. Except as to plan which by their terms include such amounts as compensation, neither the amount of any compensation deemed to be received by an employee as a result of the exercise of an option or the sale of shares received upon such exercise nor the value of an award granted to an employee will constitute compensation with respect to which any other employee benefits of such employee are determined, including, without limitation, benefits under any bonus, pension, profit-sharing, life insurance or salary continuation plan, except as otherwise specifically determined by the Board of Directors. 20. Amendment of the Plan. (a) The Board of Directors may at any time, and from time to time, modify or amend the Plan in any respect, except that if at any time the approval of the shareholders of the Company is required as to such modification or amendment under Section 422 of the Code or any successor provision with respect to Incentive Stock Options or under Rule 16b-3, or is required to ensure that any compensation attributable to any option under the Plan is deductible by the Company for federal income tax purposes under Section 162(m), the Board of Directors may not effect such modification or amendment without such approval. (b) The termination or any modification or amendment of the Plan shall not, without the consent of an optionee or recipient of an award, affect his or her rights under an option or award previously granted to him or her. With the consent of the optionee or recipient of the award affected, the Board of Directors may amend outstanding option agreements or awards in a manner not inconsistent with the Plan. The Board of Directors shall have the right to amend or modify (i) the terms and provisions of the Plan and of any outstanding Incentive Stock Options granted under the Plan to the extent necessary to qualify any or all such options for such favorable federal income tax treatment (including deferral of taxation upon exercise) as may be afforded incentive stock options under Section 422 of the Code and (ii) the terms and provisions of the Plan and of any outstanding option or award to the extent necessary to ensure the qualification of the Plan under Rule 16b-3, or is required to ensure that any compensation attributable to any option under the Plan is deductible by the Company for federal income tax purposes under Section 162(m), or any successor rule. 21. Withholding. (a) The Company shall have the right to deduct from payments of any kind otherwise due to the optionee or recipient of an award any federal, state or local taxes of any kind required by law to be withheld with respect to any shares issued upon exercise of options under the Plan or the purchase of shares subject to the award. Subject to the prior approval of the Company, which may be withheld by the Company in its sole discretion, the optionee or recipient of an award my elect to satisfy such obligations, in whole or in part, (i) by causing the Company to withhold shares of Common Stock otherwise issuable pursuant to the exercise of an option or the purchase of shares subject to an award or (ii) by delivering to the Company shares of Common Stock already owned by the optionee or award recipient. The shares so delivered or withheld shall have a fair market value equal to such withholding obligation. The fair market value of the shares used to satisfy such withholding obligation shall be determination by the Company as of the date that the amount of tax to be withheld is to be determined. An optionee or award recipient who has made an election pursuant to this Section 21(a) may only satisfy his or her withholding obligation with shares of Common Stock which are not subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements. (b) Notwithstanding the foregoing, in the case of a Reporting Person, no election to use shares for the payment of withholding taxes shall be effective unless made in compliance with any applicable requirements of Rule 16b-3 (unless it is intended that the transaction not qualify for exemption under Rule 16b-3). (c) If the recipient of an award under the Plan elects, in accordance with Section 83(b) of the Code, to recognize ordinary income in the year of acquisition of any shares awarded under the Plan, the Company will require at the time of such election an additional payment for withholding tax purposes based on the difference, if any, between the purchase price of such shares and the fair market value of such shares as of the date immediately preceding the date of the award. 22. Cancellation and New Grant of Options, Etc. The Board of Directors shall have the authority to effect, at any time and from time to time, with the consent of the affected optionees, (i) the cancellation of any or all outstanding options under the Plan and the grant in substitution therefore of new options under the Plan covering the same or different numbers of shares of Common Stock and having an option exercise price per share which may be lower or higher than the exercise price per share of the cancelled options under the Plan to provide an option exercise price per share which is higher or lower than the ten-current exercise price per share of such outstanding options. 23. Effective Date and Duration of the Plan. (a) Effective Date. The Plan shall become effective when adopted by the Board of Directors, but no option granted under the Plan shall become exercisable unless and until the Plan shall have been approved by the Company's shareholders. If such shareholder approval is not obtained within twelve months after the date of the Board's adoption of the Plan, options previously granted under the Plan shall not vest and shall terminate and no options shall be granted thereafter. Amendments to the Plan not requiring shareholder approval shall become effective when adopted by the Board of Directors; amendments requiring shareholder approval (as provided in Section 20) shall become effective when adopted by the Board of Directors, but no option issued after the date of such amendment shall become exercisable unless and until such amendment shall have been approved by the Company's shareholders. If such shareholder approval is not obtained within twelve months of the Board's adoption of such amendment, any options granted on or after the date of such amendment shall terminate to the extent that such amendment was required to enable the Company to grant such option to a particular optionee. Subject to this limitation, options and awards may be granted under the Plan at any time after the effective date and before the date fixed for termination of the Plan. (b) Termination. Unless sooner terminated in accordance with Section 17, the Plan shall terminate upon the close of business on the day next preceding the tenth anniversary of the date of its adoption by the Board of Directors. Options outstanding on such date shall continue to have force and effect in accordance with the provisions of the instruments evidencing such options. 24. Provision for Foreign Participants. The Board of Directors may, without amending the Plan, modify awards or options granted to participants who are foreign nationals or employed outside the United States to recognize differences in laws, rules, regulations or customs of such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters. Adopted by the Board of Directors on January 27, 1995 and by stockholders on January 27, 1995 EX-4 4 bos227165.txt EXHIBIT 4.6 EXHIBIT 4.6 APPLIED PARALLEL TECHNOLOGIES, INC. Amendment to 1995 Equity Incentive Plan Adopted by the Board of Directors on September 18, 1996 Approved by the Stockholders on September 24, 1996 Section 4 of the 1995 Equity Incentive Plan of Applied Parallel Technologies, Inc. shall be deleted and restated in its entirety as follows: "4. Stock Subject to Plan. Subject to adjustment as provided in Section 16 below, the total number of shares which may be issued and sold under the plan is 1,600,000 shares of Common Stock, $.01 par value per share ("Common Stock"). Except as may be prohibited by Rule 16b-3, (i) if an option granted under the Plan shall expire or terminate for any reason without having been exercised in full, the unpurchased shares subject to such option shall again be available for subsequent option grants or awards under the Plan, and (ii) if restricted stock awarded under the Plan shall be repurchased by the Company, the repurchased shares subject to such award shall again be available for subsequent option grants or awards under the Plan." EX-4 5 bos227167.txt EXHIBIT 4.7 EXHIBIT 4.7 TORRENT SYSTEMS INC. (formerly Applied Parallel Technologies, Inc.) Amendment No. 2 to 1995 Equity Incentive Plan Adopted by the Board of Directors on December 29, 1997 Approved by the Stockholders on December 29, 1997 Section 4 of the 1995 Equity Incentive Plan of Torrent Systems, Inc. (formerly Applied Parallel Technologies) shall be deleted and restated in its entirety as follows: "4. Stock Subject to Plan. Subject to adjustment as provided in Section 16 below, the total number of shares which may be issued and sold under the plan is 1,713,000 shares of Common Stock, $.01 par value per share ("Common Stock"). Except as may be prohibited by Rule 16b-3, (i) if an option granted under the Plan shall expire or terminate for any reason without having been exercised in full, the unpurchased shares subject to such option shall again be available for subsequent option grants or awards under the Plan, and (ii) if restricted stock awarded under the Plan shall be repurchased by the Company, the repurchased shares subject to such award shall again be available for subsequent option grants or awards under the Plan." EX-4 6 bos227171.txt EXHIBIT 4.8 EXHIBIT 4.8 TORRENT SYSTEMS INC. (formerly Applied Parallel Technologies, Inc.) Amendment No. 3 to 1995 Equity Incentive Plan Adopted by the Board of Directors on November 22, 1999 Approved by the Stockholders on November 22, 1999 Section 4 of the 1995 Equity Incentive Plan of Torrent Systems, Inc. (formerly Applied Parallel Technologies) shall be deleted and restated in its entirety as follows: "4. Stock Subject to Plan. Subject to adjustment as provided in Section 16 below, the total number of shares which may be issued and sold under the Plan is 2,163,000 shares of Common Stock, $.01 par value per share ("Common Stock"). Except as may be prohibited by Rule 16b-3, (i) if an option granted under the Plan shall expire or terminate for any reason without having been exercised in full, the unpurchased shares subject to such option shall again be available for subsequent option grants or awards under the Plan, and (ii) if restricted stock awarded under the Plan shall be repurchased by the Company, the repurchased shares subject to such award shall again be available for subsequent option grants or awards under the Plan." EX-4 7 bos227172.txt EXHIBIT 4.9 EXHIBIT 4.9 TORRENT SYSTEMS INC. (formerly Applied Parallel Technologies, Inc.) Amendment No. 4 to 1995 Equity Incentive Plan Adopted by the Board of Directors on February 28, 2001 Approved by the Stockholders on March 2, 2001 Section 4 of the 1995 Equity Incentive Plan of Torrent Systems, Inc. (formerly Applied Parallel Technologies) shall be deleted and restated in its entirety as follows: "4. Stock Subject to Plan. Subject to adjustment as provided in Section 16 below, the total number of shares which may be issued and sold under the Plan is 3,897,306 shares of Common Stock, $.01 par value per share ("Common Stock"). Except as may be prohibited by Rule 16b-3, (i) if an option granted under the Plan shall expire or terminate for any reason without having been exercised in full, the unpurchased shares subject to such option shall again be available for subsequent option grants or awards under the Plan, and (ii) if restricted stock awarded under the Plan shall be repurchased by the Company, the repurchased shares subject to such award shall again be available for subsequent option grants or awards under the Plan." EX-4 8 bos230385.txt EXHIBIT 4.10 EXHIBIT 4.10 ASCENTIAL SOFTWARE CORPORATION RESTRICTED STOCK AGREEMENT This Restricted Stock Agreement (this "Restricted Stock Agreement") is made and entered into as of April 3, 2002 (the "Date of Grant"), by and between Ascential Software Corporation, a Delaware corporation (the "Company") and Mark E. Atkins (the "Recipient"). WHEREAS, as compensation for future services to be provided to the Company and in consideration of Recipient's execution and compliance with the terms and conditions of an agreement (the "Letter Agreement") with Vality Technology Incorporated, a Massachusetts corporation ("Vality") and the Company, dated March 11, 2002, the Company has agreed to grant Recipient 300,000 restricted shares of common stock, par value $.01 per share, of the Company; and WHEREAS, the Board of Directors of the Company (the "Board") has approved the grant of Restricted Stock, as hereinafter defined, to the Recipient as set forth below. NOW, THEREFORE, in consideration of the covenants and agreements herein contained, and intending to be legally bound hereby, the parties agree as follows: 1. Grant of Restricted Stock. The Company hereby grants to the Recipient 300,000 restricted shares of the common stock of the Company, par value $.01 per share (the "Restricted Stock"), subject to all of the terms and conditions of this Restricted Stock Agreement and the Letter Agreement. As a condition of the effectiveness of this grant, the Recipient shall pay to the Company within 10 business days of the Date of Grant, par value in cash for each share of Restricted Stock subject to this grant. The Recipient's grant and record of share ownership shall be kept on the books of the Company, until the restrictions on transfer have lapsed pursuant to Sections 2 or 3 below. Shares that have become vested pursuant to Sections 2 or 3 below may be evidenced by stock certificates, at the request of the Recipient, which certificates shall be registered in the name of the Recipient and delivered to Recipient within five (5) days of such request. 2. Lapse of Restrictions. Except as otherwise provided in Section 3 hereof, the restrictions on transfer set forth in Section 4 hereof shall lapse, with respect to all of the Restricted Stock, on January 3, 2003. 3. Termination of Service; Compliance with Letter Agreement. (a) If prior to December 31, 2002, the Recipient's employment or service with the Company is terminated by Recipient for any reason or by the Company or Vality for Cause (as defined in Section 3(e) below) (a "Termination Event"), then all shares of Restricted Stock shall be immediately forfeited at such time, and the Company shall return to the Recipient an amount equal to the par value of the Restricted Stock which was paid by the Recipient to the Company as described in Section 1 above. (b) If prior to December 31, 2002, the Recipient's employment or service with the Company is terminated (i) due to death or permanent disability, or (ii) by the Company or Vality other than for Cause, then the restrictions on transfer set forth in Section 4 below shall immediately lapse with respect to all shares of Restricted Stock and such shares shall be deemed vested for all purposes under this Restricted Stock Agreement. (c) If at any time the Recipient is not in full compliance with the terms of the Letter Agreement and such non-compliance is not cured within 30 days of written notice to the Recipient of such non-compliance (a "Breach Event"), in addition to being subject to all remedies in law or equity that the Company or Vality may assert, then at any time thereafter the Company, in its sole and absolute discretion, may (i) to the extent that the Restricted Stock is beneficially owned by the Recipient, reacquire from the Recipient for $.01 any or all of the shares of Restricted Stock; and (ii) to the extent that the Restricted Stock has been sold, assigned or otherwise transferred by the Recipient, recover from the Recipient an amount equal to the proceeds from such sale, assignment or transfer. (d) Upon the occurrence of a Breach Event, the Company may elect to purchase all or any portion of the Restricted Stock pursuant to this Section 3 by delivery of written notice (the "Repurchase Notice") to the Recipient within ninety (90) days after the occurrence of such Breach Event. (e) For the purposes of determining whether a Termination Event has occurred, the term "Cause" shall mean the occurrence of one or more of the following: (i) Recipient 's conviction by, or entry of a plea of guilty or nolo contendere in, a court of competent jurisdiction for any crime which constitutes a felony in the jurisdiction in which the conduct alleged to constitute the felony occurred; (ii) Recipient 's misappropriation of funds or property or commission of an act of fraud, whether prior or subsequent to the Date of Grant; (iii) gross negligence or recklessness by the Recipient in the scope of the Recipient 's services to the Company; (iv) a breach by the Recipient of a material provision of this Restricted Stock Agreement or the Letter Agreement which is not cured within 30 days of notice; (v) a willful failure by the Recipient to substantially perform his duties and responsibilities as an employee after notice of such willful failure; or (vi) a material breach by the Recipient of the Company's policies or procedures. 4. Restrictions on Transfer. Unless earlier vested pursuant to Section 3(b) above, shares of Restricted Stock may not be transferred or otherwise disposed of by the Recipient prior to January 3, 2003, including by way of sale, assignment, transfer, pledge or otherwise except by will or the laws of descent and distribution. 5. Rights as a Stockholder. The Company shall hold in escrow all dividends, if any, that are paid with respect to the shares of Restricted Stock until all restrictions on such shares have lapsed. Recipient agrees that the right to vote any shares for which the restrictions on transfer set forth in Section 4 hereof have not yet lapsed (the "Unvested Shares") will be held by the Company and, accordingly, shall execute an irrevocable proxy in favor of the Company for all shares of Restricted Stock in the form supplied by the Company. 6. Notices. Any notice or communication given hereunder shall be in writing and shall be given by fax or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given three (3) days after mailing or twenty-four (24) hours after transmission of a fax to the following addresses: To you at: Mark E. Atkins 4 Longfellow Place Suite 3701 Boston, MA 02114 Telephone: 617-720-1131 with a copy to: Testa, Hurwitz & Thibeault LLP 125 High Street Boston, MA 02110 Attn: Mark Macenka, Esq. Telephone: 617-248-7000 Facsimile: 617-248-7100 To the Company at: Ascential Software Corporation 50 Washington Street Westborough, MA 01581 Attention: Scott Semel, Esq. Telephone: 508-366-3888 x 3204 Facsimile: 508-389-8726 with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP One Beacon Street Boston, MA 02108-3194 Attention: Louis A. Goodman, Esq. Telephone: 617-573-4800 Facsimile: 617-573-4822 or to such other address as any party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. 7. Securities Laws Requirements. The Company shall not be obligated to transfer any shares of Company common stock from the Recipient to another party, if such transfer, in the opinion of counsel for the Company, would violate the Securities Act of 1933, as amended from time to time (the "Securities Act") (or any other federal or state statutes having similar requirements as may be in effect at that time). Further, the Company may require as a condition of transfer of any shares to the Recipient that the Recipient furnish a written representation that he or she is holding the shares for investment and not with a view to resale or distribution to the public. The Company shall, promptly after the date of this Restricted Stock Agreement, file a registration statement on Form S-8 (or other applicable form), and take such actions as necessary to keep the information therein current from time to time, in order to register the Restricted Stock under the Securities Act and shall use its commercially reasonable efforts to cause such registration statement to become effective and to maintain the effectiveness of such registration. 8. Protections Against Violations of Restricted Stock Agreement. No purported sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any of the shares of Restricted Stock by any holder thereof in violation of the provisions of this Restricted Stock Agreement or the Certificate of Incorporation or the By-Laws of the Company, shall be valid, and the Company will not transfer any of said shares of Restricted Stock on its books nor will any of said shares of Restricted Stock be entitled to vote, nor will any dividends be paid thereon, unless and until there has been full compliance with said provisions to the satisfaction of the Company. The foregoing restrictions are in addition to and not in lieu of any other remedies, legal or equitable, available to enforce said provisions. 9. Taxes. The Recipient understands that he (and not the Company) shall be responsible for any tax obligation that may arise as a result of the transactions contemplated by this Restricted Stock Agreement and shall pay to the Company the amount determined by the Company to be such tax obligation at the time such tax obligation arises. If the Recipient fails to make such payment, the number of shares necessary to satisfy the tax obligations shall be forfeited. The Recipient shall promptly notify the Company of any election made pursuant to Section 83(b) of the Code. THE RECIPIENT ACKNOWLEDGES THAT IT IS THE RECIPIENT'S SOLE RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE CODE, IN THE EVENT THAT THE RECIPIENT DESIRES TO MAKE THE ELECTION. 10. Failure to Enforce Not a Waiver. The failure of the Company to enforce at any time any provision of this Restricted Stock Agreement shall in no way be construed to be a waiver of such provision or of any other provision hereof. 11. Governing Law. This Restricted Stock Agreement shall be governed by and construed according to the laws of the Commonwealth of Massachusetts without regard to its principles of conflict of laws. 12. Amendments. This Restricted Stock Agreement may be amended or modified at any time only by an instrument in writing signed by each of the parties hereto. 13. Survival of Terms. This Restricted Stock Agreement shall apply to and bind the Recipient and the Company and their respective permitted assignees and transferees, heirs, legatees, executors, administrators and legal successors. 14. Agreement Not a Contract for Services. Neither the grant of Restricted Stock, this Restricted Stock Agreement nor any other action taken pursuant to this Restricted Stock Agreement shall constitute or be evidence of any agreement or understanding, express or implied, that the Recipient has a right to continue to provide services as an officer, director, employee or consultant of the Company for any period of time or at any specific rate of compensation. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Restricted Stock Agreement on the day and year first above written. ASCENTIAL SOFTWARE CORPORATION /s/ Peter L. Fiore ---------------------------- Name: Peter Fiore Title: President /s/ Mark E. Atkins ---------------------------- Mark E. Atkins Recipient IRREVOCABLE PROXY I, the undersigned, hereby irrevocably authorize and empower __________ (the "Proxy") to represent me with respect of any and all Unvested Shares (as such term is defined in the Restricted Stock Agreement (the "Restricted Stock Agreement") by and between Ascential Software (the "Company") and Mark E. Atkins, at any and all general meetings of the shareholders of the Company. The Proxy is irrevocably authorized and empowered to receive, in my stead, any and all notices of and invitations to the Company's general meetings, and to participate in all such general meetings; and the Proxy is authorized and empowered to vote all such Unvested Shares in such manner as the Proxy shall, in the Proxy's sole discretion, deem to be in the best interests of the Company. This proxy shall remain in full force and effect until the shares of Restricted Stock granted to me pursuant to the Restricted Stock Agreement have vested in accordance with the terms of the Restricted Stock Agreement, unless otherwise determined by the Company. NAME: ________________________ DATE: ________________________ SIGNATURE: _______________________________ EX-5 9 bos230868.txt EXHIBIT 5.1 EXHIBIT 5.1 [SASM&F LETTERHEAD] May 1, 2002 Ascential Software Corporation 50 Washington Street Westborough, MA 01581 Re: Ascential Software Corporation Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as special counsel to Ascential Software Corporation (formerly known as Informix Corporation), a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-8 (the "Registration Statement"), for the purpose of registering with the Securities and Exchange Commission (the "Commission"), under the Securities Act of 1933, as amended (the "Securities Act"), (i) 188,265 shares (the "Torrent Shares") of the Company's common stock, par value $.01 per share, (the "Common Stock"), issuable upon the exercise of options granted under the Torrent Systems Inc. (formerly Applied Parallel Technologies, Inc.) 1995 Equity Incentive Plan (the "Plan") and assumed by the Company (each, an "Option") pursuant to the Merger Agreement dated as of November 27, 2001 between the Company, Taurus Acquisition Corporation and Torrent Systems Inc. (the "Merger Agreement"); (ii) 300,000 shares (the "Atkins Shares," and, together with the Torrent Shares, the "Shares") of Common Stock issued pursuant to the Restricted Stock Agreement, dated as of April 3, 2002, between the Company and Mark E. Atkins (the "Mark Atkins Agreement") and (iii) the Common Stock Purchase Rights attached to the Shares (the "Rights"). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In connection with this opinion, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement in the form to be filed with the Commission on the date hereof under the Securities Act; (ii) the Merger Agreement, (iii) the Certificate of Merger, dated November 27, 2001, filed with the Secretary of State of the State of Delaware in connection with the merger, (iv) a specimen certificate representing the Common Stock, in the form incorporated by references as Exhibit 4.1 to the Registration Statement (the "Specimen Certificate"); (v) the Restated Certificate of Incorporation and the Restated Bylaws of the Company, each as currently in effect; (vi) certain resolutions of the Board of Directors of the Company; (vii) the Plan; (viii) the Mark Atkins Agreement; (ix) the First Amended and Restated Rights Agreement, dated as of August 12, 1997, between Informix Corporation and BankBoston N.A., as Rights Agent (the "Rights Agreement"); (x) Amendment No. 1 to the First Amended Restated Rights Agreement, dated as of November 17, 1997, between Informix Corporation and BankBoston N.A., as Rights Agent; (xi) Amendment No. 2 to the First Amended and Restated Rights Agreement, dated as of April 26, 2002, between the Company and EquiServe Trust Company, N.A., as successor Rights Agent; and (xii) a form of rights certificate evidencing the Rights (the "Rights Certificate"). We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinion set forth herein. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such copies. In making our examination of documents executed by parties other than the Company, we have assumed that such parties had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts material to the opinions expressed herein which we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company and others. We have also assumed that each option agreement setting forth the terms of each Option granted under the Plan is consistent with the Plan and was duly authorized and validly executed and delivered by the parties thereto, and that the consideration received by the Company for the Torrent Shares delivered pursuant to the exercise of each such Option will be in an amount at least equal to the par value of such Common Stock. We have also assumed that consideration equal to the par value of the Atkins Shares was delivered to the Company by Mark E. Atkins pursuant to the Atkins Agreement. We do not express any opinion as to the effect on the opinion expressed herein of (i) the compliance or noncompliance of any party to the Merger Agreement, the Mark Atkins Agreement or the Rights Agreement (other than the Company) with any state, federal or other laws or regulations applicable to them or (ii) the legal or regulatory status or the nature of the business of any other party. Members of our firm are admitted to the bar in the State of Delaware, and we do not express any opinion as to the laws of any jurisdiction other than the laws of the State of Delaware. Based upon and subject to the foregoing, we are of the opinion that: 1. The Torrent Shares have been duly authorized for issuance and, when issued and paid for pursuant to the exercise of an Option duly granted under the Plan in accordance with the provisions of the Plan and the applicable option agreement, will be validly issued, fully paid and nonassessable. 2. The Atkins Shares have been duly authorized for issuance and are validly issued, fully paid and nonassessable. 3. The Rights attached to the Torrent Shares have been duly authorized for issuance and, when issued, will be validly issued. 4. The Rights attached to the Atkins Shares have been duly authorized for issuance and are validly issued. We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ Skadden, Arps, Slate, Meagher & Flom LLP EX-23 10 bos227067.txt EXHIBIT 23.2 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT The Board of Directors Ascential Software Corporation We consent to incorporation by reference in the Registration Statement on Form S-8 of Ascential Software Corporation of our report dated March 8, 2002 relating to the consolidated balance sheets of Ascential Software Corporation and subsidiaries as of December 31, 2001 and 2000, and the related consolidated statements of operations, stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 2001, and the related financial statement schedule, which report appears in the December 31, 2001 annual report on Form 10-K of Ascential Software Corporation. /s/ KPMG LLP Boston, Massachusetts May 1, 2002 EX-23 11 bosex233.txt EXHIBIT 23.3 EXHIBIT 23.3 INDEPENDENT AUDITORS' CONSENT We consent to incorporation by reference in the Registration Statement of Ascential Software Corporation (formerly Informix Corporation) on Form S-8 of our report dated January 28, 2000 (March 1, 2000 as to Note 1, "Merger with Informix Corporation") (relating to the consolidated financial statements of Ardent Software, Inc. and subsidiaries, which report expresses an unqualified opinion and contains an explantory paragraph relating to the merger of Ardent Software, Inc. and subsidiaries into Informix Corporation on March 1, 2000) appearing in the Annual Report on Form 10-K of Ascential Software Corporation for the year ended December 31, 2001. Deloitte & Touche LLP Boston, Massachusetts May 1, 2002 -----END PRIVACY-ENHANCED MESSAGE-----