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.