<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 1998
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
CENTURA SOFTWARE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
--------------------
CALIFORNIA 94-2874178
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
975 ISLAND DRIVE
REDWOOD SHORES, CALIFORNIA 94065
(650) 596-3400
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
--------------------
SCOTT R. BROOMFIELD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
975 ISLAND DRIVE
REDWOOD SHORES, CALIFORNIA 94065
(650) 596-3400
(Name, Address Including Zip Code, and Telephone Number
Including Area Code, of Agent for Service)
--------------------
COPIES TO:
CRAIG W. JOHNSON
JOHN V. BAUTISTA
FRANCES JOHNSTON
VENTURE LAW GROUP
A Professional Corporation
2800 Sand Hill Road
Menlo Park, CA 94025
--------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF
THIS REGISTRATION STATEMENT.
--------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. /x/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. / /
_______________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / / _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PRICE PER UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
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Common Stock, par value $0.01 12,608,414 $1.75 $22,064,724.50 $6,509.10
$
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</TABLE>
(1) Estimated solely for the purpose of computing the amount of the
registration fee based on the average of the high and low closing price of the
Common Stock as reported on The Nasdaq SmallCap on June 30, 1998 pursuant to
Rule 457(c).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE>
CENTURA SOFTWARE CORPORATION
12,608,414
COMMON STOCK
----------
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" ON PAGE 5 OF THIS PROSPECTUS FOR INFORMATION THAT SHOULD BE CONSIDERED
BY PROSPECTIVE INVESTORS.
All references herein to "Centura" or the "Company" mean Centura Software
Corporation unless otherwise indicated by the context.
The 12,608,414 shares of Centura Software Corporation Common Stock, $0.01
par value, covered by this Prospectus (the "Shares") are offered for the
account of certain shareholders of the Company (the "Selling Shareholders").
The Shares were issued (or are issuable upon exercise of warrants issued) to
the Selling Shareholders in connection with a Note Conversion Agreement dated
February 27, 1998 between the Company and Newport Acquisition Company No. 2 LLC
("NAC") and Common Stock Warrants issued to NAC on March 17, 1998 and
June 11, 1998 (the "Warrants"). For additional information concerning the
Shares and Warrants, see "Issuance of Common Stock and Warrants to Selling
Shareholders." The Selling Shareholders may sell the Shares from time to time
on the over-the-counter market in regular brokerage transactions, in
transactions directly with market makers or in certain privately negotiated
transactions. See "Plan of Distribution." Each Selling Shareholder has
advised the Company that no sale or distribution other than as disclosed herein
will be effected until after this Prospectus shall have been appropriately
amended or supplemented, if required, to set forth the terms thereof. The
Company will not receive any proceeds from the sale of the Shares by the
Selling Shareholders.
Each of the Selling Shareholders may be deemed to be an "Underwriter," as
such term is defined in the Securities Act of 1933, as amended (the "Securities
Act").
On June 30, 1998, the last sale price of the Company's Common Stock on The
Nasdaq SmallCap Market was $1.625 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
UNDERWRITING PROCEEDS TO
PRICE TO DISCOUNTS AND SELLING SHAREHOLDERS
PUBLIC COMMISSIONS(1) SHAREHOLDERS(1)
<S> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
Per Share.............................. See Text Above See Text Above See Text Above
Total..................................
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</TABLE>
(1) All expenses of registration of the Shares, estimated to be approximately
$56,509 shall be borne by the Company. Selling commissions, brokerage
fees, any applicable stock transfer taxes and any fees and disbursements
of counsel to the Selling Shareholders are payable individually by the
Selling Shareholders.
The date of this Prospectus is _________, 1998
<PAGE>
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS, AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR THE SELLING SHAREHOLDER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER
TO BUY ANY SECURITY OTHER THAN THE SHARES OF COMMON STOCK OFFERED HEREBY, NOR
DOES IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF
THE SHARES OFFERED HEREBY TO ANY PERSON IN ANY JURISDICTION IN WHICH IT IS
UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY
IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and in accordance
therewith files proxy statements, reports and other information with the
Securities and Exchange Commission (the "Commission"). Reports, and proxy and
information statements, and other information filed by the registrant with the
Commission can be inspected and copied at the public reference facilities
maintained by the Commission in Washington, D.C., and at its Regional Offices
located at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511 and 7 World Trade Center, Suite 1300, New York, New York
10048; and at the Public Reference Office of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549. In addition, the registrant is an
electronic filer and copies of such material may be retrieved from the Web site
(http://www.sec.gov) maintained by the Commission.
Copies of such material can be obtained from the Public Reference Section
of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The Company's Common Stock is quoted on The Nasdaq SmallCap Market
under the symbol "CNTR." Reports, proxy and information statements and other
information about the Company may be inspected at the Nasdaq National Market,
1735 K Street, N.W., Washington, DC 20006-1506.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1997.
2. The Company's Current Reports on Form 8-K and 8-K/A filed with the
Commission on January 30, 1998, February 27, 1998, March 2, 1998, and June 30,
1998.
3. The Company's definitive Proxy Statement dated April 30, 1998 filed
in connection with the Company's June 17, 1998 Annual Meeting of Shareholders.
4. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998, filed with the Commission on May 15, 1998.
5. The description of the Company's Common Stock set forth in the
Company's Registration Statement on Form 8-A filed with the Commission on
December 17, 1992, as amended by Amendment No. 1 to the Registration Statement
on Form 8-A filed with the Commission on January 29, 1993 and Amendment No. 2
to the Registration Statement on Form 8-A filed with the Commission on
February 4, 1993.
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<PAGE>
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Common Stock offered hereby shall be deemed
to be incorporated by reference in this Prospectus. Any statement contained in
a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
(or in any other subsequently filed document which also is incorporated by
reference herein) modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed to constitute a part hereof, except
as so modified or superseded.
The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the written or oral
request of such person, a copy of any or all of the documents incorporated by
reference, other than exhibits to such documents. Requests should be directed
to Chief Financial Officer, Centura Software Corporation, 975 Island Drive,
Redwood Shores, California 94065, telephone: (650) 596-3400.
-3-
<PAGE>
THE COMPANY
Centura Software Corporation (the "Company" or "Centura"), formerly Gupta
Corporation, provides a suite of computer software products useful to
application developers in building and deploying component based distributed
business applications. The Company's product lines include a family of
embedded databases, (SQLBASE), application development tools, (CENTURA TEAM
DEVELOPER, SQLWINDOWS AND CENTURA NET.DB) and PC-to-mainframe connectivity
products (SQLHOST). Now in its seventh generation, SQLBASE was the first
Relational Database Management System ("RDBMS") available in the PC and PC LAN
environment offering similar RDBMS functions previously found only in high-end
databases. The Company's products have historically been market leaders in the
Windows client/server environment, used both in work-group/departmental
business applications, as well as packaged applications sold by third party
software vendors to small and medium size businesses. The Company is
continuing to enhance its existing Windows client product line. At the same
time, the Company is enhancing its products into new market opportunities for
thin-clients (the World Wide Web, Portable Device Applications ("PDAs") and
smart appliances). In these markets, a small memory requirement
(or "footprint"), client/server or embedded application and database
architecture has a natural fit. (The Internet is also referred to hereinafter
as the "World Wide Web" or the "Web" and corporate internal Webs are referred
to as "Intranets").
The Company's embeddable database, SQLBASE, is a robust, small footprint RDBMS,
which requires no database administrator ("DBA"). Business applications that
embed SQLBASE operate with a single set of source code on a desktop PC, a PC
LAN, the Web, and connected mobile client environments. The Company's
development tools, CENTURA TEAM DEVELOPER and SQLWINDOWS, are 4GL object
oriented tools offering improved programmer productivity. The Company recently
introduced CENTURA NET.DB, a browser-based SQL to HTML Web authoring tool.
CENTURA NET.DB makes it easy to connect corporate databases with end users,
providing dynamic access to SQL databases in JavaScript enabled Web browsers.
In addition, as CENTURA NET.DB is browser based, it can run on any client
platform capable of running a browser. SQLHOST allows organizations to
integrate DB2 or legacy data into a client/server environment without
compromising performance, control, or security.
The primary customers of Centura products are application developers
(including Fortune 1000 developers who deploy Centura products throughout
company branch offices and customers' offices), Independent Software Vendors
who develop and deploy shrink-wrapped, packaged applications for small and
medium size business, and Value Added Resellers who develop customized software
for end-users. A new set of customers is emerging which embed SQLBASE in smart
and/or mobile electronic devices, such as the government of Mexico which imbeds
SQLBASE in Smart Cards for NAFTA export control. Some application developers
deploy both the embedded database and the application development tools in
their applications. Other developers deploy only the embedded database,
connecting SQLBASE to other business logic application tools such as Java or
Visual Basic, or to application development tools sitting on top of other,
larger databases.
The Company has established multiple distribution channels that provide
broad market coverage for its products and address the specific needs of its
varied customer segments worldwide. The Company's products are used in at
least 75 countries. Its customers include Automatic Data Processing, Aurum,
CamData, Citibank N.A., Daimler-Benz, Ford Motor Company, SQL Financials, IFS,
Help Desk Software, Norfolk Southern, Ontario Hydro, Lilly Software,
Siemens-Nixdorf Informations Systeme AG, The Southern Company, United Airlines,
United Parcel Service, Deutsch Bank, M-5, Xerox, Computer Associates, and the
governments of Mexico, France, Australia and the United Kingdom.
The Company was originally incorporated in California under the name Plum
Computers, Inc. on February 16, 1983. It completed its initial public
offering of Common Stock on February 11, 1993 under the name Gupta Corporation
and subsequently changed its name to Centura Software Corporation on
September 26, 1996. The Company's principal executive offices are located at
975 Island Drive, Redwood Shores, California 94065 and its telephone number at
that location is (650) 596-3400.
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<PAGE>
RISK FACTORS
PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED HEREBY SHOULD CAREFULLY
CONSIDER THE FOLLOWING RISK FACTORS IN ADDITION TO THE OTHER INFORMATION
APPEARING IN OR INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
CHANGES IN STRATEGIC DIRECTION: RESTRUCTURING. In efforts to stem losses
and maximize return on the Company's core assets and technologies, the
Company has restructured its operations and announced changes in strategic
direction several times in recent financial periods. The first of these
changes, which began in December 1995, encompassed a change in the Company's
name from Gupta Corporation to Centura Software Corporation and the
identification of a flagship product bearing the name CENTURA. In early
1997, the Company refocused its marketing and sales efforts away from RDBMS
and development tools products to a middleware connectivity product and
undertook a proposed merger with Infospinner, Inc. ("InfoSpinner"), for which
the Company did not obtain required shareholder approval within the specified
time frame and, as such, was not consummated. In the second half of 1997,
the Company restructured and refocused operations on its core competencies,
products and technologies and terminated its distribution arrangement with
Infospinner. There can be no assurance that the restructuring efforts the
Company has engaged in to date will be successful or that the Company will be
able to sustain profitability on a quarterly or annual basis. In addition,
there can be no assurance that the Company's management will not deem it
appropriate to undertake other major restructuring efforts or changes in
strategic direction in the future or to what degree any of these efforts will
result in improved operational performance, if at all.
RECENT CHANGES IN SENIOR MANAGEMENT. In the fourth quarter of 1997, the
Company announced significant changes in senior management. Such changes
included the appointment of Scott R. Broomfield as Chief Executive Officer,
John W. Bowman as Chief Financial Officer, and Kathy Lane as Senior Vice
President of Marketing, and the election of Messrs. Jack King, Phillip Koen,
Jr., and Earl Stahl to the Company's Board of Directors, and the retirement of
Samuel M. Inman, III, Earl Stahl and Richard Gelhaus from their positions as
officers of the Company. In February 1998 the Company announced the election
of Messrs. William D. Nicholas and Peter Micciche to the Board of Directors and
the appointment of Scott R. Broomfield to the position of Chairman & CEO.
There can be no assurance that the new management team will be successful in
execution of its objectives or that the successful execution of these
objectives will result in improved operating results or financial position of
the Company.
DEPENDENCE ON KEY PERSONNEL. The Company's future performance is
substantially dependent on the performance of its executive officers and key
product development, technical, sales, marketing and management personnel. The
Company does not have employment or non-competition agreements with any of its
employees. The loss of the services of any executive officer or other key
technical or management personnel of the Company for any reason could have a
material adverse effect on the business, operating results and financial
condition of the Company. In addition, the Company needs to recruit a Vice
President, Engineering/Chief Technology Officer. The Company considers this
position critical to the success of its ongoing competitive position in defined
markets and operations. There can be no assurance that an appropriate
individual will be located to fill this position on a timely basis on terms
reasonable to the Company, or at all.
The future success of the Company also depends on its continuing ability
to identify, hire, train, motivate and retain other highly qualified technical
and managerial personnel. Competition for such personnel is intense and the
Company has experienced difficulty in identifying and hiring qualified
engineering and software development personnel. There can be no assurance that
the Company will be able to attract, assimilate or retain other highly
qualified technical and managerial personnel in the future. The inability to
attract and retain the necessary technical and managerial personnel could have
a material and adverse effect upon its business, operating results and
financial condition.
RECENT COMPANY LOSSES; FLUCTUATIONS IN QUARTERLY RESULTS. The Company has
experienced in the past and may in the future continue to experience
significant fluctuations in quarterly operating results. The Company reported
a loss of $0.6 million for fiscal year 1997, a profit of $2.0 million for 1996,
and a loss of $44.1 million for
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<PAGE>
1995. There can be no assurance that the restructuring efforts the Company
has engaged in to date will be successful or that the Company will be able to
sustain profitability on a quarterly or annual basis. Many of the Company's
product licensing arrangements are subject to revenue recognition on a
per-unit deployed basis as the Company's deferred obligation to such
customers is gradually extinguished. Revenue recognition in such cases is
therefore dependent upon the business activities of the Company's customers
and the timely and accurate reporting of such activities to the Company,
which makes predictability of the related revenue extremely uncertain. In
addition, quarterly operating results of the Company will depend on a number
of other factors that are difficult to forecast, including, general market
demand for the Company's products; the size and timing of individual orders
during a quarter; the Company's ability to fulfill such orders; introduction,
localization or enhancement of products by the Company; delays in the
introduction and/or enhancement of products by the Company and its
competitors; market acceptance of new products; reviews in the industry press
concerning the products of the Company or its competitors; software "bugs" or
other product quality problems; competition and pricing in the software
industry; sales mix among distribution channels; customer order deferrals in
anticipation of new products; reduction in demand for existing products and
shortening of product life cycles as a result of new product introductions;
changes in operating expenses; changes in the Company's strategy; personnel
changes; foreign currency exchange rates; mix of products sold; inventory
obsolescence; product returns and rotations; and general economic conditions.
Sales of the Company's products also may be negatively affected by delays in
the introduction or availability of new hardware and software products from
third parties. The Company's financial results also may vary as a result of
seasonal factors including year and quarter end purchasing and the timing of
marketing activities, such as industry conventions and tradeshows.
Although the Company has operated historically with little or no backlog
of traditional boxed product shipments, it has experienced a seasonal pattern
of product revenue decline between the fourth quarter and the succeeding first
quarter, contributing to lower worldwide product revenues and operating results
during such quarters. It has generally realized lower European product
revenues in the third quarter as compared to the rest of the year. The Company
has also experienced a pattern of recording a substantial portion of its
revenues in the third month of a quarter. As a result, product revenues in any
quarter are dependent on orders booked in the last month. Because the
Company's staffing and other operating expenses are based in part on
anticipated net revenues, a substantial portion of which may not be generated
until the end of each quarter, delays in the receipt or shipment of orders,
including delays that may be occasioned by failures of third party product
fulfillment firms to produce and ship products, or the actual loss of product
orders can cause significant variations in operating results from quarter to
quarter. The Company may be unable to adjust spending in a timely manner to
compensate for any unexpected revenue shortfall. Accordingly, any significant
shortfall in sales of the Company's products in relation to the Company's
expectations could have an immediate adverse impact on the Company's business,
operating results and financial condition. To the extent that the Company's
expenses exceed expected revenues in any fiscal period, its business, operating
results and financial condition could be materially and adversely affected.
Due to the foregoing factors, it is likely that the Company's operating results
may, during any fiscal period, fall below the expectations of securities
analysts and investors. In such event, the trading price of the Company's
common stock could be materially and adversely affected.
VOLATILITY OF THE COMPANY'S COMMON STOCK PRICE. The market for the
Company's common stock is highly volatile. The trading price of the Company's
common stock fluctuated significantly in 1997, 1996 and 1995, and may continue
to be subject to wide fluctuations in response to quarterly variations in
operating and financial results, announcements of new products or customer
contracts by the Company or its competitors, litigation and other factors. Any
shortfall in revenue or earnings from levels expected by securities analysts or
others could have an immediate and significant adverse effect on the trading
price of the Company's common stock in any given period. Additionally, the
Company may not learn of, or be able to confirm, revenue or earnings shortfalls
until late in the fiscal quarter or following the end of the quarter, which
could result in an even more immediate and adverse effect on the trading of the
Company's common stock. Finally, the Company participates in a highly dynamic
industry, which often results in significant volatility of its common stock
price.
DILUTIVE AND POTENTIAL DILUTIVE EFFECT TO SHAREHOLDERS. The Company has
engaged in a number of transactions which have resulted in dilution to the
Company's shareholders. On May 2, 1994, a lawsuit was filed against the
Company and certain of its officers and directors by a holder of the Company's
common stock, on his
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<PAGE>
own behalf and purportedly on behalf of a class of others similarly situated
(the "Class Action Lawsuit"). The Company reached a binding settlement
agreement (the "Settlement Agreement") with plaintiffs' counsel in the lawsuit,
and gained court approval of the Settlement Agreement on September 30, 1996.
As part of the settlement, the Company agreed to provide up to a maximum of
2,500,000 shares of its common stock (the "Settlement Shares") to a fund to be
distributed among the members of the plaintiff class. As of December 31, 1997,
2,500,000 Settlement Shares had been issued and distributed in full settlement
of the Class Action Lawsuit. Issuance of the Settlement Shares was exempt from
the registration requirements of Section 5 of the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to Section 3(a)(10) of the Securities
Act, which provides for exemption of registration under the Securities Act for
securities issued pursuant to terms and conditions which have been approved,
after a hearing on the fairness of such terms and conditions, by a United
States court. As a result, the Settlement Shares, when issued and delivered
in accordance with the Settlement Agreement approved by the United States
District Court for the Northern District of California, were fully tradable,
fully paid and non-assessable.
In February 1998, Computer Associates, Inc. ("CA"), and Newport
Acquisition Company, LLC ("NAC") entered into a Note Purchase and Sale
Agreement (to which the Company consented) and the Company and NAC entered into
a Note Conversion Agreement (collectively, the "Agreements"). Under the terms
of the Agreements, the Company's promissory note, plus accrued interest, in the
amount of $12,251,000, payable to CA (the "CA Note") was acquired by NAC, and
immediately converted into 11,415,094 shares of the Company's common stock
(the "Conversion Shares"). Concurrently with execution of the Agreements, the
Company and NAC entered into an Investor Rights Agreement (the "Rights
Agreement") wherein the Company agreed to register the Conversion Shares under
the Securities Act, to be effective approximately February 27, 1999. The
Company and NAC subsequently amended certain terms of the Rights Agreement and
the Company agreed to register the Conversion Shares pursuant to the terms set
forth in this Prospectus.
Also in February 1998, pursuant to the terms a Common Stock and Warrant
Purchase Agreement, the Company completed a management-led private placement of
2,330,191 shares of the Company's common stock (the "Private Placement"),
resulting in gross proceeds to the Company of $2,470,000. Transaction costs
associated with both the Agreements and the Private Placement are approximately
$569,000. The Company registered the Private Placement shares under the
Securities Act in May 1998.
In June 1997, the Company issued warrants to purchase 90,000 and 10,000
shares of common stock to Pacific Business Funding Corporation and its
affiliate Sand Hill Capital, LLC, respectively, at an exercise price of $2.094
per share. The warrants expire on June 30, 2002. In February 1998, in
connection with the Agreements, the Company entered into a Warrant Purchase
Agreement with CA wherein the Company issued and sold to CA, a warrant to
purchase 500,000 shares of the Company's common stock (the "CA Warrant"). The
CA Warrant is exercisable at $1.906 per share and expires on February 27, 2004.
The Company registered the shares issuable upon exercise of the CA Warrant
under the Securities Act pursuant to a registration statement on Form S-3 filed
with the Commission on April 29, 1998 (the "Prior Registration"). Also in
February 1998, in connection with the Private Placement the Company issued
warrants to purchase 582,548 shares of the Company's common stock at an
exercise price of $1.25 per share (the "Private Placement Warrants").
The Private Placement Warrants expire on February 27, 2003. Also, in
consideration of services rendered in connection with the Private Placement and
the Agreements, the Company issued to Rochon Capital Group, Ltd. warrants to
purchase 354,717 shares of the Company's common stock at an exercise price of
$2.12 (the "Rochon Warrants"). The Rochon Warrants expire on
February 27, 2003. The Company registered the shares issuable under the terms
of the Private Placement Warrants and the Rochon Warrants under the Securities
Act as part of the Prior Registration.
On March 17, 1998 and June 11, 1998, in connection with certain
antidilution rights exercised by NAC under the Rights Agreement, the Company
issued two Common Stock Warrants to NAC (the "NAC Warrants"), the first
exercisable for 893,320 shares of Common Stock at an exercise price of $1.81
per share and the second exercisable for 300,000 shares of Common Stock at an
exercise price of $2.09 per share. The NAC Warrants both expire on June 11,
2003 and the Company has agreed to register the shares issuable upon exercise
of the NAC Warrants pursuant to the terms set forth in this Prospectus.
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<PAGE>
From time to time, the Company issues shares of common stock pursuant to
its 1992 Employee Stock Purchase Plan and pursuant to options granted under its
1995 Incentive Stock Option Plan, 1998 Employee Stock Option Plan and 1996
Directors' Stock Option Plan. Additional options remain outstanding and are
exercisable pursuant to the Company's 1986 Incentive Stock Option Plan, which
terminated in July 1996. In addition, the Company has issued non-plan options
to purchase an aggregate of 1,500,000 shares of common stock to the Company's
Chief Executive Officer, Chief Financial Officer and Sr. Vice President of
Marketing. In March 1998, the Company's Board of Directors approved the 1998
Employee Stock Option Plan, under which options to purchase 1,415,000 shares of
common stock are issuable to non-officer employees.
Future issuance of such shares of the Company's common stock pursuant to
any of the foregoing will dilute the beneficial ownership of existing Company
shareholders.
NEED FOR ADDITIONAL EQUITY FINANCING. The Company may be required to seek
additional equity financing to finance the acquisition of new products and
technologies, capital equipment and continuing operations. If the Company
needs further financing, there can be no assurance that it will be available on
reasonable terms or at all. Any additional equity financing will result in
dilution to the Company's shareholders.
NEW PRODUCT RISKS; RAPID TECHNOLOGICAL CHANGE. The markets for the
Company's software products and services are characterized by rapid
technological developments, evolving industry standards, swift changes in
customer requirements and computer operating environments, and frequent new
product introductions and enhancements. As a result, the success of the
Company depends substantially upon its ability to continue to enhance existing
products, develop and introduce in a timely manner, new products incorporating
technological advances and meet increasing customer expectations, all on a
timely and cost-effective basis. To the extent one or more competitors
introduce products that better address customer needs, the Company's businesses
could be adversely affected. The Company's success will also depend on the
ability of its primary products, SQLBASE, CENTURA TEAM DEVELOPER, SQLWINDOWS,
CENTURA NET.DB, and SQLHOST, to perform well with existing and future leading,
industry-standard application software products intended to be used in
connection with RDBMS. Any failure to deliver these products as scheduled or
their failure to achieve early market acceptance as a result of competition,
technological change, failure of the Company to timely release new versions or
upgrades, failure of such upgrades to achieve market acceptance or otherwise,
could have a material adverse effect on the business, operating results and
financial condition of the Company. In addition, commercial acceptance of the
Company's products and services could be adversely affected by critical or
negative statements or reports by industry and financial analysts concerning
the Company and its products, or other factors such as the Company's financial
performance. If the Company is unable to develop and introduce new products or
enhancements to existing products in a timely manner in response to changing
market conditions or customer requirements, its business, operating results and
financial condition could be materially and adversely affected. The Company
depends substantially upon internal efforts for the development of new products
and product enhancements. The Company has in the past experienced delays in
the development of new products and product versions, which resulted in loss or
delays of product revenues, and there can be no assurance that the Company will
not experience further delays in connection with its current product
development or future development activities. Also, software products as
complex as those offered by the Company may contain undetected errors when
first introduced or as new versions are released. The Company has in the past
discovered software errors in certain of its new products and enhancements,
respectively, after their introduction. Although the Company has not
experienced material adverse effects resulting from any such errors to date,
there can be no assurance that errors will not be found in new products or
releases after commencement of commercial shipments, resulting in adverse
product reviews and a loss of or delay in market acceptance, which could have a
material adverse effect upon the Company's business, operating results and
financial condition.
From time to time, the Company or its competitors may announce new
products, product versions, capabilities or technologies that have the
potential to replace or shorten the life cycles of the Company's existing
products. The Company has historically experienced increased returns of a
particular product version following the announcement of a planned release of a
new version of that product. The Company provides allowances for anticipated
returns, and believes its existing policies result in the establishment of
allowances that are adequate, and have been adequate in the past, but there can
be no assurance that product returns will not exceed such allowances
-8-
<PAGE>
in the future. The announcement of currently planned or other new products may
cause customers to delay their purchasing decisions in anticipation of such
products, which could have a material adverse effect on business, operating
results and financial condition of the Company.
YEAR 2000 ISSUE. The "Year 2000 Issue" arises because most computer
systems and programs were designed to handle only a two-digit year, as opposed
to a four digit year. When the year 2000 begins these computers may interpret
"00" as the year 1900 and could either stop processing date-related
computations or could process them incorrectly. As customers and potential
customers of the Company begin to devote incremental resources to this issue,
resources previously allocated to other information systems requirements may be
redirected to address the Year 2000 issue. To the extent that the Company's
products are not selected as part of customers' overall Year 2000 solution,
redirection of these customer resources could have a material adverse effect on
the Company's results of operations and financial condition. In addition, the
Year 2000 Issue creates risk for the Company from unforeseen problems in its
internal computer systems and from third parties with which the Company
interacts. Such failures of the Company's and/or third parties' computer
systems could have a material impact on the Company's ability to conduct its
business, and to process and account for the transfer of funds electronically.
EMBEDDABLE DATABASE MARKET. Since database capacity is often indicative
of differences in customer application, segments within the PC client/server
market in which the Company competes can generally be distinguished and
segregated by the target capacity of the database utilized. The Company
generally markets its database products in environments utilizing capacity
ranging from small, five kilobyte Smart Card environments to those in excess of
five Gigabytes. Competitors of the Company, including Microsoft, Oracle, CA,
IBM, Sybase, Borland, Pervasive, and Informix, generally have product offerings
which compete with the Company's products in some or all of these capacity
ranges. In addition, some of these competitors are providers of sophisticated
database software, originally designed and marketed primarily for use with
mainframes and minicomputers, which, if successfully re-configured to provide
similar functionality in Windows or browser clients, or smaller capacity
environments, could materially and adversely impact the Company's revenues,
results of operations and financial condition.
COMPETITION. The market for embedded databases and application
development tools system software is intensely competitive and rapidly
changing. The Company's products are specifically targeted at the emerging
portion of this market relating to embeddable PC and Web client/server
software, and the Company's current and prospective competitors offer a variety
of solutions to address this market segment. The Company faces competition
from providers of application development software, such as Oracle, Sybase's
Powersoft Division, Microsoft, and Borland, and connectivity software
competitors such as IBM. The Company also faces potential competition from
vendors of applications development tools based on 4GLs (generation languages)
or CASE (Computer Aided Software Engineers) technologies. With the emergence
of the World Wide Web as an important platform for application development and
deployment and a variety of newly created Java based development tools,
additional competitors or potential competitors have emerged.
Many of the Company's competitors have longer operating histories and
significantly greater financial, technical, sales, marketing and other
resources, as well as greater name recognition and a larger installed base,
than the Company. In addition, many competitors have established relationships
with customers of the Company. The Company's competitors could in the future
introduce products with more features and lower prices than the Company's
offerings. These companies could also bundle existing or new products with
more established products to compete with the Company. Furthermore, as the PC
and Web client/server market expands, a number of companies, with significantly
greater resources than the Company, could attempt to increase their presence in
this market by acquiring or forming strategic alliances with competitors of the
Company, or by introducing products specifically designed for the PC and Web
client/ server market.
The principal competitive factors affecting the market for the Company's
products include breadth of distribution and name recognition, product
architecture, performance, functionality, price, product quality, customer
support. The Company experienced increased competition during 1997, 1996, and
1995, resulting in loss of market share. The Company must continue to
introduce enhancements to its existing products and offer new products on a
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timely basis in order to remain competitive. However, even if the Company
introduces such products in this manner, it may not be able to compete
effectively because of the significantly larger resources available to many of
the Company's competitors. There can be no assurance that the Company will be
able to compete successfully or that competition will not have a material
adverse effect on the Company's business, operating results and financial
condition.
MARKET ACCEPTANCE OF PC CLIENT/SERVER SYSTEMS. To date, substantially all
of the Company's revenues have been derived from the licensing of software
products for PC client/server systems and licensing of such products is
expected to continue to account for substantially all of the Company's revenues
for the foreseeable future. With the increasing focus on enterprise-wide
systems that embrace the World Wide Web, some customers may opt for solutions
that favor mainframe or mini-computer solutions with associated Web
connectivity. Accordingly, some companies may abandon use of PC client/server
systems, which could have a material adverse effect on the Company's future
success.
COMPONENT SOFTWARE MARKETS. The advent of so-called "component" software
may alter the way in which customers buy software. In this structure, logical
statements or discreet "units of activity" can be distributed pursuant to
executable statements within a Windows or Browser client environment. As
specific software functionality can be bundled into smaller units or objects
rather than in broad, highly functional products such as the Company's
development tools, customers may be less willing to buy such broad, highly
functional products. If such a trend continues, the Company may choose to
introduce component-type products. The costs and efforts necessary to package
and distribute such components are largely unknown and there can be no
assurance that the Company will be able to repackage and distribute its
products in such a component-type software structure, in an efficient manner,
or at all.
INTERNET SOFTWARE MARKET. The market for Internet software in general,
and the segments of such market addressed by the Company's products in
particular, are relatively new. The future financial performance of the
Company will depend in part on the continued expansion of this market and these
market segments and the growth in the demand for other products developed by
the Company, as well as increased acceptance of the Company's products by MIS
professionals. There can be no assurance that the Internet software market and
the relevant segments of the market will continue to grow, that the Company
will be able to respond effectively to the evolving requirements of the market
and market segments, or that MIS professionals will accept the Company's
products. If the Company is not successful in developing, marketing,
localizing and selling applications that gain commercial acceptance in these
markets and market segments on a timely basis, the Company's business,
operating results and financial condition could be materially and adversely
affected.
DEPENDENCE UPON DISTRIBUTION CHANNELS. The Company relies on
relationships with value-added resellers and independent third party
distributors for a substantial portion of its sales and revenues. Some of the
Company's resellers and distributors also offer competing products. Most of
the Company's resellers and distributors are not subject to any minimum
purchase requirements, they can cease marketing the Company's products at any
time, and they may from time to time be granted stock exchange or rotation
rights. Moreover, the introduction of new and enhanced products may result in
higher product returns and exchanges from distributors and resellers. Any
product returns or exchanges in excess of recorded allowances could have a
material adverse effect on the Company's business, operating results and
financial condition. The Company also maintains strategic relationships with
a number of vertical software vendors and other technology companies for
marketing or resale of the Company's products. Any termination or significant
disruption of the Company's relationship with any of its resellers or
distributors, or the failure by such parties to renew agreements with the
Company, could materially and adversely affect the Company's business,
operating results and financial condition. Since 1994 the Company has reduced
its resources devoted to North American corporate sales and also decreased its
expenditures on corporate and product marketing. Failure of the Company to
successfully implement, support and manage its sales strategies could have a
material adverse effect on the Company.
The distribution channels through which client/server software products are
sold have been characterized by rapid change, including consolidations and
financial difficulties of distributors, resellers and other marketing partners
including certain of the Company's current distributors. The bankruptcy,
deterioration in financial
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<PAGE>
condition or other business difficulties of a distributor or retailer could
render the Company's accounts receivable from such entity uncollectible, and
this could result in a material adverse effect on the Company's business,
operating results and financial condition. There can be no assurance that
distributors will continue to purchase the Company's products or provide the
Company's products with adequate promotional support. Failure of distributors
to do so could have a material and adverse effect on the Company's business,
operating results and financial condition.
In a number of international markets the Company has entered into
quasi-exclusive, multi-year agreements with independent companies that have
also licensed the use of the Company's name. These agreements are in place to
increase the Company's opportunities and penetration in such markets where the
rapid adoption of client/server technologies is anticipated. While the Company
believes that to date these agreements have increased the Company's penetration
in such markets, there can be no certainty that this performance will continue
nor that these relationships will remain in place. The Company's future cost
of maintaining its business in these markets could increase substantially if
these agreements are not renewed.
DEPENDENCE ON THIRD-PARTY ORGANIZATIONS. The Company is increasingly
dependent on the efforts of third party "partners", including consultants,
system houses and software developers to implement, service and support the
Company's products. These third parties increasingly have opportunities to
select from a very broad range of products from the Company's competitors, many
of whom have greater resources and market acceptance than the Company. In
order to succeed, the Company must actively recruit and sustain relationships
with these third parties. There can be no assurance that the Company will be
successful in recruiting new partners or in sustaining its relationships with
its existing partners.
INTERNATIONAL SALES AND OPERATIONS. International sales represented
58%, 60% and 61% of the Company's net revenues for the years ended December
31, 1997, 1996 and 1995, respectively. A key component of the Company's
strategy is continued expansion into international markets, and the Company
currently anticipates that international sales, particularly in new and
emerging markets, will continue to account for a significant percentage of
total revenues. The Company will need to retain effective distributors, and
hire, retain and motivate qualified personnel internationally to maintain
and/or expand its international presence. There can be no assurance that the
Company will be able to successfully market, sell, localize and deliver its
products in these international markets. In addition to the uncertainty as
to the Company's ability to sustain or expand its international presence,
there are certain risks inherent in doing business on an international level,
such as unexpected changes in regulatory requirements and government
controls, problems and delays in collecting accounts receivable, tariffs,
export license requirements and other trade barriers, difficulties in
staffing and managing foreign operations, longer payment cycles, political
and economic instability, fluctuations in currency exchange rates, seasonal
reductions in business activity during summer months in Europe and certain
other parts of the world, restrictions on the export of critical technology,
and potentially adverse tax consequences, which could adversely impact the
success of international operations. Sales of the Company's products are
denominated both in local currencies of the respective geographic region and
in US dollars, depending upon the economic stability of that region and
locally accepted business practices. Accordingly, any increase in the value
of the US dollar relative to local currencies in these markets may negatively
impact revenues, results of operations and financial condition. An increase
in the relative value of the US dollar would serve to increase the relative
foreign currency cost to the customer of a US dollar denominated purchase,
which may negatively affect the Company's sales in foreign markets. In
addition, the US dollar value of a sale denominated in a region's local
currency decreases in proportion to relative increases in the value of the US
dollar. In addition, effective copyright and trade secret protection may be
limited or unavailable under the laws of certain foreign jurisdictions.
There can be no assurance that one or more of such factors will not have a
material adverse effect on the Company's international operations and,
consequently, on the Company's business, operating results and financial
condition.
PROPRIETARY RIGHTS. The success and ability of the Company to compete is
dependent in part upon the Company's proprietary technology. While the Company
relies on trademark, trade secret and copyright laws to protect its technology,
the Company believes that factors such as the technological and creative skills
of its personnel, new product developments, frequent product enhancements, name
recognition and customer support are more essential to establishing and
maintaining a technology leadership position. The Company has one patent with
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<PAGE>
respect to its SQLWINDOWS and CENTURA TEAM DEVELOPER products. The Company
believes that the ownership of patents is not presently a significant factor in
its business and that its success does not depend on the ownership of patents,
but primarily on the innovative skills, technical competence and marketing
abilities of its personnel. Also, there can be no assurance that others will
not develop technologies that are similar or superior to the Company's
technology. The source code for the Company's proprietary software is
protected both as a trade secret and as a copyrighted work. Despite these
precautions, it may be possible for a third party to copy or otherwise obtain
and use their products or technology without authorization, or to develop
similar technology independently. In addition, effective copyright and trade
secret protection may be unavailable or limited in certain foreign countries.
The Company generally enters into confidentiality or license agreements
with its employees, consultants and vendors, and generally controls access to
and distribution of its software, documentation and other proprietary
information. Despite efforts to protect proprietary rights, unauthorized
parties may attempt to copy aspects of the Company's products or to obtain and
use information that is regarded as proprietary. Policing such unauthorized
use is difficult. There can be no assurance that the steps taken by the
Company will prevent misappropriation of the Company's technology or that such
agreements will be enforceable. In addition, litigation may be necessary in
the future to enforce intellectual property rights, to protect trade secrets or
to determine the validity and scope of the proprietary rights of others. Such
litigation could result in substantial costs and diversion of resources and
could have a material adverse effect on the Company's business, operating
results and financial condition.
There can be no assurance that third parties will not claim infringement
by the Company with respect to current or future products, and the Company
expects that it will increasingly be subject to such claims as the number of
products and competitors in the client/server and Internet connectivity
software market grows and the functionality of such products overlaps with
other industry segments. In the past, the Company has received notices
alleging that its products infringe trademarks of third parties. The Company
has historically dealt with and will in the future continue to deal with such
claims in the ordinary course of business, evaluating the merits of each claim
on an individual basis. There are currently no material pending legal
proceedings against the Company regarding trademark infringement. Any such
third party claims, whether or not they are meritorious, could result in costly
litigation or require the Company to enter into royalty or licensing
agreements. Such royalty or license agreements, if required, may not be
available on terms acceptable to the Company, or at all. If the Company was
found to have infringed upon the proprietary rights of third parties, it could
be required to pay damages, cease sales of the infringing products and redesign
or discontinue such products, any of which could have a material adverse effect
on the Company's business, operating results and financial condition.
MANAGEMENT OF POTENTIAL GROWTH. In recent years, the Company has
experienced both expansion and contraction of its operations each of which has
placed significant demands on the Company's administrative, operational and
financial resources. To manage future growth, if any, the Company must
continue to improve its financial and management controls, reporting systems
and procedures on a timely basis and expand, train and manage its work force.
There can be no assurance that the Company will be able to perform such actions
successfully. The Company intends to continue to invest in improving its
financial systems and controls in connection with higher levels of operations.
Although the Company believes that its systems and controls are adequate for
the current level of operations, the Company anticipates that it may need to
add additional personnel and expand and upgrade its financial systems to manage
any future growth. The Company's failure to do so could have a material
adverse effect upon the Company's business, operating results and financial
condition.
LEGAL PROCEEDINGS. On September 17, 1997, Technology Venture (Software)
Holdings Limited, formerly known as Eagerquest Investments Limited
("Eagerquest") filed suit against the Company in the United States District
Court for the Central District of California alleging that the Company acted
improperly in modifying the exclusivity provision of its contract with
Eagerquest for the distribution of the Company's products in the territories of
Hong Kong and China and that the Company's actions illegally damaged
Eagerquest. The Company believes that its actions were within its rights under
its contract with Eagerquest and that the allegations are without merit.
The Company intends to defend itself vigorously in this action and that the
outcome will not have a material adverse affect on the Company's financial
situation or business prospects.
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<PAGE>
Other than the above, there are currently no material pending legal
proceedings against the Company or any of its subsidiaries. The Company
operates in an environment, however, where litigation may occur in the course
of its normal business operations. In the complex and volatile industry in
which the Company operates, disputes, litigation, regulatory proceedings and
other actions are a necessary risk of doing business. There can be no
assurance that the Company will not participate in such legal proceedings and
that the costs and charges will not have a material adverse impact on the
Company's future success.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Common Stock by
the Selling Shareholders pursuant to this registration statement.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Centura's Articles of Incorporation limit the liability of directors for
monetary damages arising from breach of their fiduciary duty to the maximum
extent permitted by the California Corporations Code ("California Law"). Such
limitation of liability does not affect the availability of equitable remedies
such as injunctive relief or recission. The limitation on monetary liability
also does not apply to liabilities arising under the federal securities laws.
Centura's Bylaws provide that Centura shall indemnify its directors and
officers to the fullest extent permitted by California Law, including
circumstances in which indemnification is otherwise discretionary under
California Law. The Company has entered into indemnification agreements with
its officers and directors containing provision which are in some respects
broader than the specific indemnification provisions contained in the
California Corporations Code. The indemnification agreements may require
Centura, among other things, to indemnify its directors against certain
liabilities that may arise by reason of their status or service as directors
(other than liabilities arising from willful misconduct of a culpable nature),
to advance their expenses incurred as a result of any proceeding against them
as to which they could be indemnified, and to obtain director's insurance if
available on reasonable terms.
Centura believes that the limitation provision in its Articles of
Incorporation and the indemnification provisions in its Articles of
Incorporation, Bylaws and indemnification agreements will facilitate Centura's
ability to continue to attract and retain qualified individuals to serve as
directors of Centura. Centura has also obtained directors and officers'
liability insurance covering, subject to certain exceptions, actions taken by
Centura's directors and officers in their capacities as such.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted against
the Company by such director, officer or controlling person in connection with
the securities being registered hereunder, the Company 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 Securities
Act and will be governed by the final adjudication of such issue.
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ISSUANCE OF COMMON STOCK AND WARRANTS TO SELLING SHAREHOLDERS
On February 27, 1998, the Company issued and sold to Newport Acquisition
Company No. 2 LLC ("NAC") pursuant to the terms of a Note Conversion Agreement
by and between the Company and NAC dated February 27, 1998, 11,415,094 shares
of its Common Stock. On March 17, 1998, the Company authorized for issuance to
NAC a Common Stock Purchase Warrant exercisable for 893,320 shares of Common
Stock. On June 11, 1998, the Company issued to NAC a Common Stock Purchase
Warrant exercisable for 300,000 shares of Common Stock. NAC and its members
are also referred to collectively herein as the "Selling Shareholders". This
Prospectus covers the 12,608,414 shares of the Company's Common Stock issued
(or issuable upon exercise of the Warrants issued) to the Selling Shareholders.
PLAN OF DISTRIBUTION
The Selling Shareholders may sell the Shares in whole or in part, from
time to time on the over-the-counter market at prices and on terms prevailing
at the time of any such sale. Any such sale may be made in broker's
transactions through broker-dealers acting as agents, in transactions directly
with market makers or in privately negotiated transactions where no broker or
other third party (other than the purchaser) is involved. The Selling
Shareholders will pay selling commissions or brokerage fees, if any, with
respect to the sale of the Shares in amounts customary for the type of
transaction effected. Each Selling Shareholder will also pay all applicable
transfer taxes and all fees and disbursements of counsel for such Selling
Shareholder incurred in connection with the sale of shares.
Each Selling Shareholder has advised the Company that during such time as
such Selling Shareholder may be engaged in the attempt to sell Shares
registered hereunder, such person will:
(i) not engage in any stabilization activity in connection with any of
the Company's securities;
(ii) cause to be furnished to each person to whom Shares included herein
may be offered, and to each broker-dealer, if any, through whom Shares are
offered, such copies of this Prospectus, as supplemented or amended, as may be
required by such person;
(iii) not bid for or purchase any of the Company's securities or any
rights to acquire the Company's securities, or attempt to induce any person to
purchase any of the Company's securities or rights to acquire the Company's
securities other than as permitted under the Exchange Act;
(iv) not effect any sale of distribution of the Shares until after the
Prospectus shall have been appropriately amended or supplemented, if required,
to set forth the terms thereof; and
(v) effect all sales of Shares in broker's transactions through
broker-dealers acting as agents, in transactions directly with market makers or
in privately negotiated transaction where no broker or other third party (other
than the purchaser) is involved.
The Selling Shareholders, and any other persons who participate in the
sale of the Shares, may be deemed to be "Underwriters" as defined in the
Securities Act. Any commissions paid or any discounts or concessions allowed
to any such persons, and any profits received on resale of the Shares, may be
deemed to be underwriting discounts and commissions under the Securities Act.
The Company has agreed to maintain the effectiveness of this Registration
Statement until the earlier of the sale of all the Shares registered pursuant
to this Prospectus or such date as the Company shall be satisfied that each
holder of Shares can sell all of the Shares it holds in any three-month period
in compliance with Rule 144 promulgated under the Securities Act. No sales may
be made pursuant to
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this Prospectus after such date unless the Company amends or supplements this
Prospectus to indicate that it has agreed to extend such period of
effectiveness.
The Company has agreed to indemnify the Selling Shareholders against
certain liabilities, including liabilities under the Securities Act.
SELLING SHAREHOLDERS
The following table sets forth certain information as of June 29, 1998 as
of which date 29,591,757 shares of the Company's Common Stock were issued and
outstanding, with respect to the Selling Shareholders:
<TABLE>
<CAPTION>
Shares Beneficially Shares of Shares Beneficially
Owned Prior Common Stock Owned After
Name of Selling Shareholder to the Offering(1) Offered Hereby(1) the Offering(1)(2)
- --------------------------- ------------------- ----------------- ------------------
Number Percent Number Percent
------ ------- ------ -------
<S> <C> <C> <C> <C> <C>
Newport Acquisition Company 9,183,896 31.0% 9,183,896 0 *
No. 2 LLC
1600 Dove Street, Suite 300
Newport Beach, CA 92660
Sterling Centura Software, LLC 3,424,518 11.6% 3,424,518 0 *
650 Dundee Road, Suite 370
Northbrook, IL 60062
- -----------------
* Less than 1%
</TABLE>
(1) Information with respect to beneficial ownership is based upon information
contained in filings made by certain Selling Shareholders with the
Securities and Exchange Commission, and information obtained from the
Company's transfer agent and certain of the Selling Shareholders.
Includes with respect to the following persons or entities warrants
exercisable for the following number of shares of the Company's Common
Stock: Newport Acquisition Company No. 2 LLC - 1,193,320.
(2) Assumes sale of all Shares offered hereby and no other purchases or sales
of the Company's Common Stock. See "Plan of Distribution."
No Selling Shareholder has had any material relationship with the Company
or any of its predecessors or affiliates within the last three years.
LEGAL MATTERS
Certain legal matters with respect to the legality of the issuance of the
Common Stock offered hereby will be passed upon for the Company by Venture Law
Group, A Professional Corporation, 2800 Sand Hill Road, Menlo Park, California
94025. As of the date of this Registration Statement, certain members of
Venture Law Group and investment partnerships of which members of Venture Law
Group are partners beneficially own 28,000 shares of the Registrant's Common
Stock.
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<PAGE>
EXPERTS
The financial statements of Centura Software Corporation incorporated in
this Prospectus by reference to the Annual Report on Form 10-K for the year
ended December 31, 1997, have been so incorporated in reliance on the report
of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
Registrant in connection with the sale and distribution of the Common Stock
being registered. Selling commissions and brokerage fees and any applicable
transfer taxes and fees and disbursements of counsel for the Selling
Shareholders are payable individually by the Selling Shareholders. All amounts
are estimates except the registration fee.
<TABLE>
<CAPTION>
Amount
To be Paid
----------
<S> <C>
Registration Fee........................................................ $ 6,509
Legal Fees and Expenses................................................. $10,000
Accounting Fees and Expenses............................................ $10,000
Fees of Houlihan Lokey Howard & Zukin for valuation of NAC Warrants..... $30,000
Total.............................................................. $56,509
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Centura's Articles of Incorporation limit the liability of directors for
monetary damages arising from breach of their fiduciary duty to the maximum
extent permitted by the California Corporations Code ("California Law"). Such
limitation of liability does not affect the availability of equitable remedies
such as injunctive relief or recission. The limitation on monetary liability
also does not apply to liabilities arising under the federal securities laws.
Centura's Bylaws provide that Centura shall indemnify its directors and
officers to the fullest extent permitted by California Law, including
circumstances in which indemnification is otherwise discretionary under
California Law. The Company has entered into indemnification agreements with
its officers and directors containing provision which are in some respects
broader than the specific indemnification provisions contained in the
California Corporations Code. The indemnification agreements may require
Centura, among other things, to indemnify its directors against certain
liabilities that may arise by reason of their status or service as directors
(other than liabilities arising from willful misconduct of a culpable nature),
to advance their expenses incurred as a result of any proceeding against them
as to which they could be indemnified, and to obtain director's insurance if
available on reasonable terms.
Centura believes that the limitation provision in its Articles of
Incorporation and the indemnification provisions in its Articles of
Incorporation, Bylaws and indemnification agreements will facilitate Centura's
ability to continue to attract and retain qualified individuals to serve as
directors of Centura. Centura has also obtained directors and officers'
liability insurance covering, subject to certain exceptions, actions taken by
Centura's directors and officers in their capacities as such.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted against
the Company by such director, officer or controlling person in connection with
the securities being
II-1
<PAGE>
registered hereunder, the Company 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 Securities Act and will be governed
by the final adjudication of such issue.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<S> <C> <C>
4.1 (1) Preferred Shares Rights Agreement, dated as of August 3, 1994, between the
Registrantand Chemical Trust Company of California, including the Certificate
of Determination of Rights, Preferences and Privileges of Series A Participating
Preferred Stock, the form of Rights Certificate and the Summary of Rights, attached
thereto as Exhibit A, B and C, respectively.
4.2 (2) Amendment to Preferred Shares Rights Agreement effective February 27, 1998.
5.1 Opinion of Venture Law Group, A Professional Corporation.
10.31 (2) Note Conversion Agreement dated February 27, 1998 between the
Registrant and Newport Acquisition Company No. 2, LLC.
10.33 (2) Investor Rights Agreement dated Feburary 27, 1998 between the Registrant and Newport
Acquisition Company No. 2, LLC.
10.36 Common Stock Purchase Warrants issued to Newport Acquisition Company No. 2, LLC dated
March 17, 1998 and June 11, 1998, respectively.
10.37(3) Amendment to Investor Rights Agreement dated June 13, 1998 between the Registrant and Newport
Acquisition Company No. 2, LLC.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
___________________________
</TABLE>
(1) Incorporated by reference from the Registrant's Registration
Statement on Form 8-A filed with the Commission on August 10, 1994.
(2) Incorporated by reference from the Registrant's Annual Report on Form
10-K for the year ended December 31, 1997.
(3) Incorporated by reference from the Registrant's Current Report on
Form 8-K filed June 30, 1998.
ITEM 17. UNDERTAKINGS
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 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new
II-2
<PAGE>
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.
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 provisions referred to in Item 15 above 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 Securities Act of 1933 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 against the
Registrant by such director, officer or controlling person in connection with
the securities being registered hereunder, 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Redwood Shores, State of California, on the 29th day
of June 1998.
CENTURA SOFTWARE CORPORATION
By: /s/ Scott R. Broomfield
------------------------
Scott R. Broomfield
President, Chief Executive Officer and
Chairman of the Board of Directors
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints, Scott R. Broomfield and John W.
Bowman, and each of them acting individually, as his attorney-in-fact, each with
full power of substitution, for him in any and all capacities, to sign any and
all amendments to this Registration Statement (including post-effective
amendments), and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments to said Registration Statement. Pursuant to
the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates
indicated:
<TABLE>
SIGNATURE TITLE DATE
--------------- ----------------------------------------------- -------------
<S> <C> <C>
/s/ Scott R. Broomfield President, Chief Executive Officer and Chairman June 29, 1998
---------------------------- of the Board of Directors
Scott R. Broomfield (Principal Executive Officer)
/s/ John W. Bowman
----------------------------
John W. Bowman Senior Vice President, Finance and Operations June 29, 1998
and Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Jack King
---------------------------- Director June 29, 1998
Jack King
/s/ Philip Koen
---------------------------- Director June 29, 1998
Philip Koen
/s/ Peter Micciche
---------------------------- Director June 29, 1998
Peter Micciche
II-4
<PAGE>
SIGNATURE TITLE DATE
--------------- ----------------------------------------------- -------------
<S> <C> <C>
/s/ William Nicholas
---------------------------- Director June 29, 1998
William Nicholas
/s/ Earl M. Stahl
---------------------------- Director June 29, 1998
Earl M. Stahl
</TABLE>
II-5
<PAGE>
CENTURA SOFTWARE CORPORATION
INDEX TO EXHIBITS
<TABLE>
Exhibit
Number
-------
<S> <C>
4.1 (1) Preferred Shares Rights Agreement, dated as of August 3, 1994, between the Registrant and
Chemical Trust Company of California, including the Certificate of Determination of
Rights, Preferences and Privileges of Series A Participating Preferred Stock, the form of
Rights Certificate and the Summary of Rights, attached thereto as Exhibits A, B and C,
respectively.
4.2 (2) Amendment to Preferred Shares Rights Agreement effective February 27, 1998.
5.1 Opinion of Venture Law Group, A Professional Corporation.
10.31 (2) Note Converson Agreement dated February 27, 1998 between the Registrant and Newport Acquisition Company No. 2, LLC.
10.33 (2) Investor Rights Agreement dated February 27, 1998 between the Registrant and Newport Acquisition Company No. 2, LLC.
10.36 Common Stock Purchase Warrants issued to Newport Acquisition Company No. 2, LLC dated March 17, 1998 and
June 11, 1998, respectively.
10.37 (3) Amendment to Investor Rights Agreement dated June 13, 1998 between the Registrant and Newport Acquisition Company
No. 2, LLC.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
________________
</TABLE>
(1) Incorporated by reference from the Registrant's Registration on Form 8-A
filed with the Commission on August 10, 1994.
(2) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1997.
(3) Incorporated by reference from the Registrant's Current Report on
Form 8-K filed June 30, 1998.
<PAGE>
EXHIBIT 5.1
VENTURE LAW GROUP
a Professional Corporation
2800 Sand Hill Road
Menlo Park, CA. 94025
July 1, 1998
Centura Software Corporation
975 Island Drive
Redwood Shores, California 94065
REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed by you
with the Securities and Exchange Commission on or about July 2, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of a total of 12,608,414 shares of your
Common Stock (the "Shares"). As your legal counsel, we have examined the
proceedings taken in connection with the sale of the Shares to the Selling
Shareholders and are familiar with the proceeding proposed to be taken by you,
and the Selling Shareholders in connection with the sale of the Shares under the
Registration Statement.
It is our opinion that the Shares are legally and validly issued, fully
paid and nonassessable and when resold in the manner referred to in the
Registration Statement, the Shares will be legally and validly issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name whenever it appears in the
Registration Statement and any amendments to it.
Sincerely,
VENTURE LAW GROUP
A Professional Corporation
/s/ Venture Law Group
<PAGE>
EXHIBIT 10.36
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH
A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT
OF 1933.
Warrant No. CS98 - 23 Number of Shares: 893,320
Date of Issuance: March 17, 1998 (subject to adjustment)
CENTURA SOFTWARE CORPORATION
COMMON STOCK PURCHASE WARRANT
Centura Software Corporation (the "COMPANY"), for value received, hereby
certifies that Newport Acquisition Company No. 2 LLC, a Delaware limited
liability company, or its registered assigns (the "REGISTERED HOLDER"), is
entitled, subject to the terms set forth below, to purchase from the Company,
at any time after the date hereof and on or before the Expiration Date
(as defined in Section 5 below), up to 893,320 shares (as adjusted from time to
time pursuant to the provisions of this Warrant) of Common Stock of the
Company, at a purchase price of $1.81 per share. The shares purchasable upon
exercise of this Warrant and the purchase price per share, as adjusted from
time to time pursuant to the provisions of this Warrant, are sometimes
hereinafter referred to as the "WARRANT STOCK" and the "PURCHASE PRICE,"
respectively.
This Warrant is issued pursuant to a Settlement Agreement and Release of
Claims dated June 13, 1998 between the Company and the Registered Holder (the
"PURCHASE AGREEMENT") and is subject to the terms and conditions of the
Agreement.
1. EXERCISE.
(a) MANNER OF EXERCISE. This Warrant may be exercised by the
Registered Holder, in whole or in part, by surrendering this Warrant, with the
purchase form appended hereto as EXHIBIT A duly executed by such Registered
Holder or by such Registered Holder's duly authorized attorney, at the
principal office of the Company, or at such other office or agency as the
Company may designate, accompanied by payment in full of the Purchase Price
payable in respect of the number of shares of Warrant Stock purchased upon
such exercise. The Purchase Price may be paid by cash, check or wire transfer
to the Registered Holder. Notwithstanding the foregoing, this Warrant may be
exercised pursuant to the terms set forth in Section 1(c) below.
(b) EFFECTIVE TIME OF EXERCISE. Each exercise of this Warrant shall
be deemed to have been effected immediately prior to the close of business on
the day on which this Warrant shall have been surrendered to the Company as
provided in Section 1(a) above. At such time, the person or persons in whose
name or names any certificates for Warrant Stock shall be issuable upon
<PAGE>
such exercise as provided in Section 1(d) below shall be deemed to have
become the holder or holders of record of the Warrant Stock represented by
such certificates.
(c) NET ISSUE EXERCISE.
(i) In lieu of exercising this Warrant in the manner provided
above in Section 1(a), the Registered Holder may elect to receive shares equal
to the value of this Warrant (or the portion thereof being canceled) by
surrender of this Warrant at the principal office of the Company together with
notice of such election in which event the Company shall issue to holder a
number of shares of Common Stock computed using the following formula:
X = Y (A - B)
---------
A
Where X = The number of shares of Common Stock to be issued to the
Registered Holder.
Y = The number of shares of Common Stock purchasable under this
Warrant (at the date of such calculation).
A = The fair market value of one share of Common Stock (at the date
of such calculation).
B = The Purchase Price (as adjusted to the date of such calculation).
(ii) For purposes of this Section 1(c), the fair market value of
one share of Common Stock on the date of calculation shall mean:
(A) if this Warrant is exercised after, and not in
connection with, the Company's initial public offering, and if the Company's
Common Stock is traded on a securities exchange or The Nasdaq Stock Market, The
Nasdaq SmallCap Market or actively traded over-the-counter:
(1) the closing sale price of the Company's Common
Stock on the day prior to the date the Warrant is submitted for exercise, but
if no such closing sale price is available; then:
(i) if the Company's Common Stock is traded on a
securities exchange, The Nasdaq Stock Market, or The Nasdaq SmallCap Market,
the fair market value shall be deemed to be the average of the closing prices
over a thirty (30) day period ending three days before date of calculation; or
(ii) if the Company's Common Stock is actively
traded over-the-counter, the fair market value shall be deemed to be the
average of the closing bid or sales price (whichever is applicable) over the
thirty (30) day period ending three days before the date of calculation; or
-2-
<PAGE>
(B) if (A) is not applicable, the fair market value shall
be at the highest price per share which the Company could obtain on the date of
calculation from a willing buyer (not a current employee or director) for
shares of Common Stock sold by the Company, from authorized but unissued
shares, as determined in good faith by the Board of Directors, unless the
Company is at such time subject to an acquisition as described in Section 2(c)
below, in which case the fair market value per share of Common Stock shall be
deemed to be the value of the consideration per share received by the holders
of such stock pursuant to such acquisition.
(d) DELIVERY TO HOLDER. As soon as practicable after the exercise
of this Warrant in whole or in part, and in any event within ten (10) days
thereafter, the Company at its expense will cause to be issued in the name of,
and delivered to, the Registered Holder, or as such Holder (upon payment by
such Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of shares of
Warrant Stock to which such Registered Holder shall be entitled, and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on
the face or faces thereof for the number of shares of Warrant Stock equal
(without giving effect to any adjustment therein) to the number of such
shares called for on the face of this Warrant minus the number of such shares
purchased by the Registered Holder upon such exercise as provided in Section
1(a) above.
2. ADJUSTMENTS.
(a) STOCK SPLITS AND DIVIDENDS. If outstanding shares of the
Company's Common Stock shall be subdivided into a greater number of shares or a
dividend in Common Stock shall be paid in respect of Common Stock, the Purchase
Price in effect immediately prior to such subdivision or at the record date of
such dividend shall simultaneously with the effectiveness of such subdivision
or immediately after the record date of such dividend be proportionately
reduced. If outstanding shares of Common Stock shall be combined into a smaller
number of shares, the Purchase Price in effect immediately prior to such
combination shall, simultaneously with the effectiveness of such combination,
be proportionately increased. When any adjustment is required to be made in
the Purchase Price, the number of shares of Warrant Stock purchasable upon the
exercise of this Warrant shall be changed to the number determined by dividing
(i) an amount equal to the number of shares issuable upon the exercise of this
Warrant immediately prior to such adjustment, multiplied by the Purchase Price
in effect immediately prior to such adjustment, by (ii) the Purchase Price in
effect immediately after such adjustment.
(b) RECLASSIFICATION, ETC. In case of any reclassification or
change of the outstanding securities of the Company or of any reorganization of
the Company (or any other corporation the stock or securities of which are at
the time receivable upon the exercise of this Warrant) or any similar corporate
reorganization on or after the date hereof, then and in each such case the
holder of this Warrant, upon the exercise hereof at any time after the
consummation of such reclassification, change, reorganization, merger or
conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise hereof prior to such
consummation, the stock or other securities or property to which such holder
would have been entitled upon such consummation if such holder had exercised
this Warrant immediately prior thereto, all subject
-3-
<PAGE>
to further adjustment as provided in Section 2(a); and in each such case, the
terms of this Section 2 shall be applicable to the shares of stock or other
securities properly receivable upon the exercise of this Warrant after such
consummation.
(c) REORGANIZATION, CONSOLIDATION, MERGER, ETC. In case at any
time or from time to time, the Company shall (i) effect a reorganization,
(ii) consolidate with or merge into any other person, or (iii) transfer all
or substantially all of its properties or assets to any other person under
any plan or arrangement contemplating the dissolution of the Company, then,
in each such case, as a condition to the consummation of such a transaction,
proper and adequate provisions shall be made by the Company whereby the
holder of this Warrant, on the exercise hereof as provided in Section 1 at
any time after the consummation of such reorganization, consolidation or
merger or the effective date of such dissolution, as the case may be, shall
receive in lieu of the Common Stock (or other securities or property)
issuable on such exercise prior to such consummation or such effective date,
the stock and other securities and property (including cash) to which such
holder would have been entitled upon such consummation or in connection with
such dissolution, as the case may be, if such holder had so exercised this
Warrant, immediately prior thereto, all subject to further adjustment
thereafter as provided herein.
(d) DISSOLUTION. In the event of any dissolution of the Company
following the transfer of all or substantially all of its properties or assets,
the Company, prior to such dissolution, shall at its expense deliver or cause
to be delivered the stock and other securities and property (including cash,
where applicable) receivable by the holders of this Warrant after the effective
date of such dissolution.
(e) CONTINUATION OF TERMS. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this Section 2, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities
and property receivable on the exercise of this Warrant, as appropriately
adjusted, after the consummation of such reorganization, consolidation or
merger or the effective date of dissolution following any such transfer, as the
case may be, and shall be assumed by and binding upon the issuer of any such
stock or other securities, including, in the case of any such transfer, the
person acquiring all or substantially all of the properties or assets of the
Company, whether or not such person shall have expressly assumed the terms of
this Warrant.
(f) ADJUSTMENT CERTIFICATE. When any adjustment is required to be
made in the Purchase Price, the Company shall promptly mail to the Registered
Holder a certificate setting forth the Purchase Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
certificate shall also set forth the kind and amount of stock or other
securities or property into which this Warrant shall be exercisable following
the occurrence of any of the events specified in this Section 2.
3. TRANSFERS.
(a) UNREGISTERED SECURITY. Each holder of this Warrant acknowledges
that this Warrant and the Warrant Stock have not been registered under the
Securities Act, and agrees not to sell, pledge, distribute, offer for sale,
transfer or otherwise dispose of this Warrant or any Warrant Stock issued upon
its exercise in the absence of (i) an effective registration statement under the
Act
-4-
<PAGE>
as to this Warrant or such Warrant Stock and registration or qualification of
this Warrant or such Warrant Stock under any applicable U.S. federal or state
securities law then in effect or (ii) an opinion of counsel, satisfactory to
the Company, that such registration and qualification are not required. Each
certificate or other instrument for Warrant Stock issued upon the exercise of
this Warrant shall bear a legend substantially to the foregoing effect.
(b) TRANSFERABILITY. Subject to the provisions of Section 3(a)
hereof, this Warrant and all rights hereunder are transferable, in whole or in
part, upon surrender of the Warrant with a properly executed assignment (in the
form of EXHIBIT B hereto) at the principal office of the Company.
(c) WARRANT REGISTER. The Company will maintain a register
containing the names and addresses of the Registered Holders of this Warrant.
Until any transfer of this Warrant is made in the warrant register, the Company
may treat the Registered Holder of this Warrant as the absolute owner hereof
for all purposes; PROVIDED, HOWEVER, that if this Warrant is properly assigned
in blank, the Company may (but shall not be required to) treat the bearer
hereof as the absolute owner hereof for all purposes, notwithstanding any
notice to the contrary. Any Registered Holder may change such Registered
Holder's address as shown on the warrant register by written notice to the
Company requesting such change.
4. NO IMPAIRMENT. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will (subject to
Section 13 below) at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of this Warrant
against impairment.
5. TERMINATION. This Warrant (and the right to purchase securities upon
exercise hereof) shall terminate on June 11, 2003 (the "EXPIRATION DATE").
6. NOTICES OF CERTAIN TRANSACTIONS. In case:
(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon the exercise
of this Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to subscribe for or
purchase any shares of stock of any class or any other securities, or to
receive any other right, to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right, or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company, any consolidation or merger of the Company with or into
another corporation (other than a consolidation or merger in which the Company
is the surviving entity), or any transfer of all or substantially all of the
assets of the Company, or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
-5-
<PAGE>
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder of this Warrant a notice specifying, as the case may be,
(i) the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon such reorganization, reclassification, consolidation,
merger, transfer, dissolution, liquidation or winding-up) are to be determined.
Such notice shall be mailed at least ten (10) days prior to the record date or
effective date for the event specified in such notice.
7. RESERVATION OF STOCK. The Company will at all times reserve and keep
available, solely for the issuance and delivery upon the exercise of this
Warrant, such shares of Warrant Stock and other stock, securities and property,
as from time to time shall be issuable upon the exercise of this Warrant.
8. EXCHANGE OF WARRANTS. Upon the surrender by the Registered Holder of
any Warrant or Warrants, properly endorsed, to the Company at the principal
office of the Company, the Company will, subject to the provisions of Section 3
hereof, issue and deliver to or upon the order of such Holder, at the Company's
expense, a new Warrant or Warrants of like tenor, in the name of such
Registered Holder or as such Registered Holder (upon payment by such Registered
Holder of any applicable transfer taxes) may direct, calling in the aggregate
on the face or faces thereof for the number of shares of Common Stock called
for on the face or faces of the Warrant or Warrants so surrendered.
9. REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of
an indemnity agreement (with surety if reasonably required) in an amount
reasonably satisfactory to the Company, or (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will issue, in lieu
thereof, a new Warrant of like tenor.
10. NOTICES. Any notice required or permitted by this Warrant shall be
in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified
or registered mail (airmail if sent internationally) with postage prepaid,
addressed (a) if to the Registered Holder, to the address of the Registered
Holder most recently furnished in writing to the Company and (b) if to the
Company, to the address set forth below or subsequently modified by written
notice to the Registered Holder.
11. NO RIGHTS AS SHAREHOLDER. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a shareholder of the Company.
12. NO FRACTIONAL SHARES. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder. In lieu of any fractional
shares which would otherwise be issuable, the Company shall pay cash equal to
the product of such fraction multiplied by the fair
-6-
<PAGE>
market value of one share of Common Stock on the date of exercise, as
determined in good faith by the Company's Board of Directors.
13. AMENDMENT OR WAIVER. Any term of this Warrant may be amended or
waived only by an instrument in writing signed by the party against which
enforcement of the amendment or waiver is sought.
14. HEADINGS. The headings in this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
15. GOVERNING LAW. This Warrant shall be governed, construed and
interpreted in accordance with the laws of the State of California, without
giving effect to principles of conflicts of law.
[SIGNATURE PAGE FOLLOWS]
-7-
<PAGE>
Executed as of the date first set forth herein above.
CENTURA SOFTWARE CORPORATION
By: Scott Broomfield
-----------------------------------
Title: CEO
--------------------------------
Address: 975 Island Drive
Redwood Shores, CA 94065
Fax Number: (650)-596-4376
<PAGE>
EXHIBIT A
PURCHASE FORM
To: Centura Software Corporation Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant No. CS-98-______, hereby irrevocably elects to purchase ______ shares
of the Common Stock covered by such Warrant and herewith makes payment of
$________, representing the full purchase price for such shares at the price
per share provided for in such Warrant.
The undersigned further acknowledges that it has reviewed the
representations and warranties contained in Section 4 of the Purchase Agreement
(as defined in the Warrant) and by its signature below hereby makes such
representations and warranties to the Company. Defined terms contained in such
representations and warranties shall have the meanings assigned to them in the
Purchase Agreement, PROVIDED that the term "Seller" shall refer to the
undersigned and the term "Securities" shall refer to the Warrant Stock.
Signature: ____________________________
Address: ______________________________
<PAGE>
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, _______________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant with respect to the number of shares of Common Stock covered thereby
set forth below, unto:
NAME OF ASSIGNEE ADDRESS/FAX NUMBER NO. OF SHARES
---------------- ------------------ -------------
Dated:_______________ Signature: ___________________________
___________________________
Witness: ___________________________
<PAGE>
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT
OF 1933.
Warrant No. CS98 - 24 Number of Shares: 300,000
Date of Issuance: June 11, 1998 (subject to adjustment)
CENTURA SOFTWARE CORPORATION
COMMON STOCK PURCHASE WARRANT
Centura Software Corporation (the "COMPANY"), for value received, hereby
certifies that Newport Acquisition Company No. 2 LLC, a Delaware limited
liability company, or its registered assigns (the "REGISTERED HOLDER"), is
entitled, subject to the terms set forth below, to purchase from the Company,
at any time after the date hereof and on or before the Expiration Date (as
defined in Section 5 below), up to 300,000 shares (as adjusted from time to
time pursuant to the provisions of this Warrant) of Common Stock of the
Company, at a purchase price of $2.09 per share. The shares purchasable upon
exercise of this Warrant and the purchase price per share, as adjusted from
time to time pursuant to the provisions of this Warrant, are sometimes
hereinafter referred to as the "WARRANT STOCK" and the "PURCHASE PRICE,"
respectively.
This Warrant is issued pursuant to a Settlement Agreement and Release of
Claims dated June 13, 1998 between the Company and the Registered Holder (the
"PURCHASE AGREEMENT") and is subject to the terms and conditions of the
Agreement.
1. EXERCISE.
(a) MANNER OF EXERCISE. This Warrant may be exercised by the
Registered Holder, in whole or in part, by surrendering this Warrant, with
the purchase form appended hereto as EXHIBIT A duly executed by such
Registered Holder or by such Registered Holder's duly authorized attorney, at
the principal office of the Company, or at such other office or agency as the
Company may designate, accompanied by payment in full of the Purchase Price
payable in respect of the number of shares of Warrant Stock purchased upon
such exercise. The Purchase Price may be paid by cash, check or wire transfer
to the Registered Holder. Notwithstanding the foregoing, this Warrant may be
exercised pursuant to the terms set forth in Section 1(c) below.
(b) EFFECTIVE TIME OF EXERCISE. Each exercise of this Warrant
shall be deemed to have been effected immediately prior to the close of
business on the day on which this Warrant shall have been surrendered to the
Company as provided in Section 1(a) above. At such time, the person or
persons in whose name or names any certificates for Warrant Stock shall be
issuable upon such exercise as provided in Section 1(d) below shall be deemed
to have become the holder or holders of record of the Warrant Stock
represented by such certificates.
<PAGE>
(c) NET ISSUE EXERCISE.
(i) In lieu of exercising this Warrant in the manner provided
above in Section 1(a), the Registered Holder may elect to receive shares
equal to the value of this Warrant (or the portion thereof being canceled) by
surrender of this Warrant at the principal office of the Company together
with notice of such election in which event the Company shall issue to holder
a number of shares of Common Stock computed using the following formula:
X = Y (A - B)
--------
A
Where X = The number of shares of Common Stock to be issued to the
Registered Holder.
Y = The number of shares of Common Stock purchasable under this
Warrant (at the date of such calculation).
A = The fair market value of one share of Common Stock (at the date
of such calculation).
B = The Purchase Price (as adjusted to the date of such
calculation).
(ii) For purposes of this Section 1(c), the fair market value of
one share of Common Stock on the date of calculation shall mean:
(A) if this Warrant is exercised after, and not in
connection with, the Company's initial public offering, and if the Company's
Common Stock is traded on a securities exchange or The Nasdaq Stock Market, The
Nasdaq SmallCap Market or actively traded over-the-counter:
(1) the closing sale price of the Company's Common
Stock on the day prior to the date the Warrant is submitted for exercise, but
if no such closing sale price is available; then:
(i) if the Company's Common Stock is traded on a
securities exchange, The Nasdaq Stock Market, or The Nasdaq SmallCap Market,
the fair market value shall be deemed to be the average of the closing prices
over a thirty (30) day period ending three days before date of calculation; or
(ii) if the Company's Common Stock is actively
traded over-the-counter, the fair market value shall be deemed to be the
average of the closing bid or sales price (whichever is applicable) over the
thirty (30) day period ending three days before the date of calculation; or
(B) if (A) is not applicable, the fair market value shall
be at the highest price per share which the Company could obtain on the date of
calculation from a willing buyer (not a current employee or director) for
shares of Common Stock sold by the Company, from authorized but unissued
shares, as determined in good faith by the Board of Directors, unless the
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Company is at such time subject to an acquisition as described in Section 2(c)
below, in which case the fair market value per share of Common Stock shall be
deemed to be the value of the consideration per share received by the holders
of such stock pursuant to such acquisition.
(d) DELIVERY TO HOLDER. As soon as practicable after the exercise
of this Warrant in whole or in part, and in any event within ten (10) days
thereafter, the Company at its expense will cause to be issued in the name
of, and delivered to, the Registered Holder, or as such Holder (upon payment
by such Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of shares of
Warrant Stock to which such Registered Holder shall be entitled, and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on
the face or faces thereof for the number of shares of Warrant Stock equal
(without giving effect to any adjustment therein) to the number of such
shares called for on the face of this Warrant minus the number of such shares
purchased by the Registered Holder upon such exercise as provided in Section
1(a) above.
2. ADJUSTMENTS.
(a) STOCK SPLITS AND DIVIDENDS. If outstanding shares of the
Company's Common Stock shall be subdivided into a greater number of shares or a
dividend in Common Stock shall be paid in respect of Common Stock, the Purchase
Price in effect immediately prior to such subdivision or at the record date of
such dividend shall simultaneously with the effectiveness of such subdivision
or immediately after the record date of such dividend be proportionately
reduced. If outstanding shares of Common Stock shall be combined into a smaller
number of shares, the Purchase Price in effect immediately prior to such
combination shall, simultaneously with the effectiveness of such combination,
be proportionately increased. When any adjustment is required to be made in
the Purchase Price, the number of shares of Warrant Stock purchasable upon the
exercise of this Warrant shall be changed to the number determined by dividing
(i) an amount equal to the number of shares issuable upon the exercise of this
Warrant immediately prior to such adjustment, multiplied by the Purchase Price
in effect immediately prior to such adjustment, by (ii) the Purchase Price in
effect immediately after such adjustment.
(b) RECLASSIFICATION, ETC. In case of any reclassification or change
of the outstanding securities of the Company or of any reorganization of the
Company (or any other corporation the stock or securities of which are at the
time receivable upon the exercise of this Warrant) or any similar corporate
reorganization on or after the date hereof, then and in each such case the
holder of this Warrant, upon the exercise hereof at any time after the
consummation of such reclassification, change, reorganization, merger or
conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise hereof prior to such
consummation, the stock or other securities or property to which such holder
would have been entitled upon such consummation if such holder had exercised
this Warrant immediately prior thereto, all subject to further adjustment as
provided in Section 2(a); and in each such case, the terms of this Section 2
shall be applicable to the shares of stock or other securities properly
receivable upon the exercise of this Warrant after such consummation.
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<PAGE>
(c) REORGANIZATION, CONSOLIDATION, MERGER, ETC. In case at any
time or from time to time, the Company shall (i) effect a reorganization,
(ii) consolidate with or merge into any other person, or (iii) transfer all
or substantially all of its properties or assets to any other person under
any plan or arrangement contemplating the dissolution of the Company, then,
in each such case, as a condition to the consummation of such a transaction,
proper and adequate provisions shall be made by the Company whereby the
holder of this Warrant, on the exercise hereof as provided in Section 1 at
any time after the consummation of such reorganization, consolidation or
merger or the effective date of such dissolution, as the case may be, shall
receive in lieu of the Common Stock (or other securities or property)
issuable on such exercise prior to such consummation or such effective date,
the stock and other securities and property (including cash) to which such
holder would have been entitled upon such consummation or in connection with
such dissolution, as the case may be, if such holder had so exercised this
Warrant, immediately prior thereto, all subject to further adjustment
thereafter as provided herein.
(d) DISSOLUTION. In the event of any dissolution of the Company
following the transfer of all or substantially all of its properties or assets,
the Company, prior to such dissolution, shall at its expense deliver or cause
to be delivered the stock and other securities and property (including cash,
where applicable) receivable by the holders of this Warrant after the effective
date of such dissolution.
(e) CONTINUATION OF TERMS. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this Section 2, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities
and property receivable on the exercise of this Warrant, as appropriately
adjusted, after the consummation of such reorganization, consolidation or
merger or the effective date of dissolution following any such transfer, as the
case may be, and shall be assumed by and binding upon the issuer of any such
stock or other securities, including, in the case of any such transfer, the
person acquiring all or substantially all of the properties or assets of the
Company, whether or not such person shall have expressly assumed the terms of
this Warrant.
(f) ADJUSTMENT CERTIFICATE. When any adjustment is required to be
made in the Purchase Price, the Company shall promptly mail to the Registered
Holder a certificate setting forth the Purchase Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
certificate shall also set forth the kind and amount of stock or other
securities or property into which this Warrant shall be exercisable following
the occurrence of any of the events specified in this Section 2.
3. TRANSFERS.
(a) UNREGISTERED SECURITY. Each holder of this Warrant acknowledges
that this Warrant and the Warrant Stock have not been registered under the
Securities Act, and agrees not to sell, pledge, distribute, offer for sale,
transfer or otherwise dispose of this Warrant or any Warrant Stock issued upon
its exercise in the absence of (i) an effective registration statement under
the Act as to this Warrant or such Warrant Stock and registration or
qualification of this Warrant or such Warrant Stock under any applicable U.S.
federal or state securities law then in effect or (ii) an opinion of counsel,
satisfactory to the Company, that such registration and qualification are not
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<PAGE>
required. Each certificate or other instrument for Warrant Stock issued upon
the exercise of this Warrant shall bear a legend substantially to the foregoing
effect.
(b) TRANSFERABILITY. Subject to the provisions of Section 3(a)
hereof, this Warrant and all rights hereunder are transferable, in whole or in
part, upon surrender of the Warrant with a properly executed assignment (in the
form of EXHIBIT B hereto) at the principal office of the Company.
(c) WARRANT REGISTER. The Company will maintain a register
containing the names and addresses of the Registered Holders of this Warrant.
Until any transfer of this Warrant is made in the warrant register, the Company
may treat the Registered Holder of this Warrant as the absolute owner hereof
for all purposes; PROVIDED, HOWEVER, that if this Warrant is properly assigned
in blank, the Company may (but shall not be required to) treat the bearer
hereof as the absolute owner hereof for all purposes, notwithstanding any
notice to the contrary. Any Registered Holder may change such Registered
Holder's address as shown on the warrant register by written notice to the
Company requesting such change.
4. NO IMPAIRMENT. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will (subject to Section
13 below) at all times in good faith assist in the carrying out of all such
terms and in the taking of all such action as may be necessary or appropriate
in order to protect the rights of the holder of this Warrant against
impairment.
5. TERMINATION. This Warrant (and the right to purchase securities upon
exercise hereof) shall terminate on June 11, 2003 (the "EXPIRATION DATE").
6. NOTICES OF CERTAIN TRANSACTIONS. In case:
(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon the exercise
of this Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to subscribe for or
purchase any shares of stock of any class or any other securities, or to
receive any other right, to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right, or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company, any consolidation or merger of the Company with or into
another corporation (other than a consolidation or merger in which the Company
is the surviving entity), or any transfer of all or substantially all of the
assets of the Company, or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to
the Registered Holder of this Warrant a notice specifying, as the case may
be, (i) the date on which a record is to be taken
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<PAGE>
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the effective
date on which such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record of Common Stock
(or such other stock or securities at the time deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up) are to be determined. Such notice shall be mailed at
least ten (10) days prior to the record date or effective date for the event
specified in such notice.
7. RESERVATION OF STOCK. The Company will at all times reserve and keep
available, solely for the issuance and delivery upon the exercise of this
Warrant, such shares of Warrant Stock and other stock, securities and property,
as from time to time shall be issuable upon the exercise of this Warrant.
8. EXCHANGE OF WARRANTS. Upon the surrender by the Registered Holder of
any Warrant or Warrants, properly endorsed, to the Company at the principal
office of the Company, the Company will, subject to the provisions of Section 3
hereof, issue and deliver to or upon the order of such Holder, at the Company's
expense, a new Warrant or Warrants of like tenor, in the name of such
Registered Holder or as such Registered Holder (upon payment by such Registered
Holder of any applicable transfer taxes) may direct, calling in the aggregate
on the face or faces thereof for the number of shares of Common Stock called
for on the face or faces of the Warrant or Warrants so surrendered.
9. REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of
an indemnity agreement (with surety if reasonably required) in an amount
reasonably satisfactory to the Company, or (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will issue, in lieu
thereof, a new Warrant of like tenor.
10. NOTICES. Any notice required or permitted by this Warrant shall be
in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified
or registered mail (airmail if sent internationally) with postage prepaid,
addressed (a) if to the Registered Holder, to the address of the Registered
Holder most recently furnished in writing to the Company and (b) if to the
Company, to the address set forth below or subsequently modified by written
notice to the Registered Holder.
11. NO RIGHTS AS SHAREHOLDER. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a shareholder of the Company.
12. NO FRACTIONAL SHARES. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder. In lieu of any fractional
shares which would otherwise be issuable, the Company shall pay cash equal to
the product of such fraction multiplied by the fair market value of one share
of Common Stock on the date of exercise, as determined in good faith by the
Company's Board of Directors.
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13. AMENDMENT OR WAIVER. Any term of this Warrant may be amended or
waived only by an instrument in writing signed by the party against which
enforcement of the amendment or waiver is sought.
14. HEADINGS. The headings in this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
15. GOVERNING LAW. This Warrant shall be governed, construed and
interpreted in accordance with the laws of the State of California, without
giving effect to principles of conflicts of law.
[SIGNATURE PAGE FOLLOWS]
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<PAGE>
Executed as of the date first set forth herein above.
CENTURA SOFTWARE CORPORATION
By: Scott Broomfield
-----------------------------------
Title: CEO
--------------------------------
Address: 975 Island Drive
Redwood Shores, CA 94065
Fax Number: (650)-596-4376
<PAGE>
EXHIBIT A
PURCHASE FORM
To: Centura Software Corporation Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant No. CS-98-______, hereby irrevocably elects to purchase ______ shares
of the Common Stock covered by such Warrant and herewith makes payment of
$________, representing the full purchase price for such shares at the price
per share provided for in such Warrant.
The undersigned further acknowledges that it has reviewed the
representations and warranties contained in Section 4 of the Purchase Agreement
(as defined in the Warrant) and by its signature below hereby makes such
representations and warranties to the Company. Defined terms contained in such
representations and warranties shall have the meanings assigned to them in the
Purchase Agreement, PROVIDED that the term "Seller" shall refer to the
undersigned and the term "Securities" shall refer to the Warrant Stock.
Signature: ______________________________
Address: ________________________________
<PAGE>
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, ______________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant with respect to the number of shares of Common Stock covered thereby
set forth below, unto:
NAME OF ASSIGNEE ADDRESS/FAX NUMBER NO. OF SHARES
---------------- ------------------ -------------
Dated:_______________ Signature: ___________________________
___________________________
Witness: ___________________________
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated February 10, 1998, except as to Note 13 which is dated February 27,
1998, appearing on page 61 of Centura Software Corporation's Annual Report on
Form 10-K for the year ended December 31, 1997. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
San Jose, California
July 2, 1998
