<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 7 , 1996
REGISTRATION NO.____________________________________________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8/S-3
REGISTRATION STATEMENT
(Including registration of shares for resale by means of a Form S-3 Prospectus)
UNDER
THE SECURITIES ACT OF 1933
OPENVISION TECHNOLOGIES, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 94-3161663
(State of Incorporation) (I.R.S. Employer Identification Number)
7133 KOLL CENTER PARKWAY, SUITE 200
PLEASANTON, CA 94566
(Address of principal executive offices)
1996 EMPLOYEE STOCK PURCHASE PLAN
1996 DIRECTOR OPTION PLAN
1992 STOCK PLAN
(Full title of the plan)
MICHAEL S. FIELDS
CHAIRMAN OF THE BOARD
OPENVISION TECHNOLOGIES, INC.
7133 KOLL CENTER PARKWAY
PLEASANTON, CA 94566
(510) 426-6400
(Name, address, including zip code and telephone number, including area code,
of agent for service)
Copy to:
BARRY E. TAYLOR, ESQ.
DONNA M. PETKANICS, ESQ.
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value
- To be issued under the 1996 Employee Stock 300,000 shares $ 11.90(1) $ 3,570,000(1) $ 1,231
Purchase Plan
- To be issued under the 1996 Director Option Plan 250,000 shares $ 14.00(2) $ 3,500,000(2) $ 1,207
- Issued under the 1992 Stock Plan 784,977 shares $ 14.00(2) $ 10,989,678(2) $ 3,790
- To be issued under the 1992 Stock Plan 2,909,870 shares $ 9.50(3) $ 27,643,765(3) $ 9,532
TOTAL 4,244,847 SHARES $ 45,703,443 $ 15,760
===================================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee on the basis of 85% of the Price to Public set forth on
the cover page of the Company's Prospectus dated May 7, 1996 relating to
its initial public offering, $14.00 per share (the "MARKET PRICE").
(2) Estimated pursuant to Rule 457(h) solely for purposes of calculating the
registration fee on the basis of the Market Price.
(3) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee. The price of $9.50 per share represents the weighted
average exercise price based on (a) the weighted average exercise price of
the 1,065,594 shares subject to options currently outstanding under the
1992 Stock Plan of $1.72 per share, and (b) as to the 1,844,276 shares
subject to future issuance under the 1992 Stock Plan, the Market Price.
<PAGE> 2
PROSPECTUS
OPENVISION TECHNOLOGIES, INC.
784,977 Shares
Common Stock
--------------------------------------
This Prospectus relates to 784,977 shares of the Common Stock (the
"COMMON STOCK") of OpenVision Technologies, Inc. (the "COMPANY"), which may be
offered from time to time by Selling Stockholders (the "SELLING STOCKHOLDERS")
for their own accounts. It is anticipated that the Selling Stockholders will
offer shares for sale at prevailing prices in the over-the-counter market on the
date of sale. The Company will receive no part of the proceeds from sales made
hereunder. The Selling Stockholders will bear all sales commissions and similar
expenses. Any other expenses incurred by the Company in connection with the
registration and offering and not borne by the Selling Stockholders will be
borne by the Company. None of the shares offered pursuant to this Prospectus
have been registered prior to the filing of the Registration Statement of which
this Prospectus is a part.
--------------------------------------
Each Selling Stockholder and any broker executing selling orders on
behalf of a Selling Stockholder may be deemed to be an "underwriter" within the
meaning of the Securities Act of 1933, as amended (the "SECURITIES ACT"), in
which event commissions received by such broker may be deemed to be underwriting
commissions under the Securities Act.
The Common Stock is traded on the Nasdaq National Market (Nasdaq
Symbol: OPVN). The Company's Common Stock was initially sold to the public at a
price of $14.00 per share on May 7, 1996.
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.
--------------------------------------
The date of this Prospectus is May 7, 1996
2
<PAGE> 3
No person is authorized to give any information or to make any
representations, other than those contained in this Prospectus, in connection
with the offering described herein, and, if given or made, such information or
representations must not be relied upon as having been authorized by the Company
or any Selling Stockholder. This Prospectus does not constitute an offer to
sell, or a solicitation of an offer to buy, nor shall there be any sale of these
securities by any person in any jurisdiction in which it is unlawful for such
person to make such offer, solicitation or sale. Neither the delivery of this
Prospectus nor any sale made hereunder shall under any circumstances create an
implication that the information contained herein is correct as of any time
subsequent to the date hereof.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus is delivered, upon written or oral request of
any such person, a copy of any and all of the information that has been or may
be incorporated by reference in this Prospectus, other than exhibits to such
documents. Requests for such copies should be directed to Jay Jones, General
Counsel, OpenVision Technologies, Inc., 7133 Koll Center Parkway, Pleasanton,
California, 94566. The Company's telephone number at that location is (510)
426-6400.
The Company is subject to the informational reporting requirements of
the Securities Exchange Act of 1934 and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "COMMISSION"). Such reports, proxy statements and other
information can be inspected and copied at the Public Reference Room of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Commission's regional offices at 500 West Madison Street, Suite 1400, Chicago,
IL 60661 and Seven World Trade Center, 13th Floor, New York, NY 10048; and
copies of such material can be obtained from the Public Reference Section of the
Commission, Washington, D.C. 20549, at prescribed rates. The Company's Common
Stock is traded on the Nasdaq National Market. The foregoing materials should
also be available for inspection at the National Association of Securities
Dealers, Inc., 1735 K. Street N.W., Washington, D.C. 20006.
This prospectus contains information concerning the Company and the
sale of its Common Stock by the Selling Stockholders, but does not contain all
the information set forth in the Registration Statement which the Company has
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "SECURITIES ACT"). The Registration Statement, including
various exhibits, may be inspected at the Commission's office in Washington,
D.C.
3
<PAGE> 4
THE COMPANY
The Company was incorporated in June 1992 and has acquired a
significant part of its technology through ten acquisitions of companies,
division of companies or products, all of which were completed prior to July 31,
1993. The Company's headquarters are located at 7133 Koll Center Parkway,
Pleasanton, California 94566, and its telephone number is (510) 426-6400.
SELLING STOCKHOLDERS
None of the Selling Stockholders is an executive officer or director of
the Company. The Selling Stockholders do not beneficially own, individually or
in the aggregate, more than 1% of the outstanding Common Stock of the Company
prior to this offering. The following table shows the names of the Selling
Stockholders and the number of shares of Common Stock to be sold by them
pursuant to this Prospectus:
<TABLE>
<CAPTION>
NAME NO. OF SHARES
- -------------------------------------------------------------------
<S> <C>
ABBATE, ROBERT 625
ABBOTT, MARCIA L. 1,771
ACTON-ZINGALE, VALERIE 219
AKMAN, BENJAMIN 1,875
ALBERTOLLE, STEPHEN J. 2,708
ALDRIDGE, DEBORAH J. 1,326
ALDRIDGE, STEVEN B. 13,365
ALI, SALAHU S. 133
ANANTHAKRISHNAN, RAVI 125
ANASTASI, RICHARD J. 1,193
ANDERSEN, KARL E. 833
ANDERSON, ALAN K. 43,750
ANDERSON, CINDY A. 94
ARMSTRONG, DAVID F. 25,376
AYAT, IBRAHAM NAIM 885
BAER, GARRY R. 1,354
BARBER, PETER 146
BARNARD, TIMOTHY S. 656
BAYLOR, BARBARA 781
BEARDSLEY, JOAN C. 2,877
BECKER, JR., PAUL H. 417
BERNARDI, JOHN 1,354
BOCCANFUSO, ANTHONY J. 4,375
BOFFEY, JONATHAN 7,011
BOLT, THOMAS (RORY) 1,354
BRADFORD, CAMPBELL 750
BRADLEY, M. HELEN 25,000
</TABLE>
4
<PAGE> 5
<TABLE>
<CAPTION>
NAME NO. OF SHARES
- -------------------------------------------------------------------
<S> <C>
BRAY, TALI 68
BRETON, BRIAN J. 2,271
BROWN, REBEL 4,167
BUCK, LAWRENCE H. 281
CAITO, JOHN P. 369
CARIGNAN, CLAUDE 599
CARUSO, DAVID T. 135
CASSIDY, RICHARD S. 4,855
CHADWICK, JOHN R. 1,224
CHEKURI, CHAKRADHAR 677
CHEW, SANDRA A. 229
CHRISTMAN, R. DAVID 313
CHU, JIA-BAO 167
COCHRAN, JERRY W. 990
COHN, AMY 938
COLMAN, STEVE 17,817
COOK, CHARLOTTE 625
COOKE, GEOFF R. 365
COUTURIER, RUSSELL 3,542
CRIBBIN, MARGARET 331
CROOKER, ASHLEY 1,140
CUTTER, MELISA A. 317
D'AMICO, LEONARD 677
DANIEL, NITZA 208
DAVIS, DONALD T. 500
DAWSON, EVA E. 78
DAWSON, TRICIA N. 83
DE ANGELIS, MARIO 599
DIAMOND, MARK P. 1,598
DOHERTY, GAIL S. 7,880
DOWNEY, JOHN M. 4,386
DUDLEY, DAVID G. 880
DUFFY, JAMES R. 133
DUNNE, PHILLIP W. 140
DWYER, VALERIE 219
ELLIOTT, ANNIE B. 99
EVANS, TONY 177
FANNON, MARK 1,406
FARLEY, BETTY 109
</TABLE>
5
<PAGE> 6
<TABLE>
<CAPTION>
NAME NO. OF SHARES
- -------------------------------------------------------------------
<S> <C>
FELDMAN, GARY 1,354
FEY, KENNETH 2,125
FIELDS, MICHELLE 1,125
FISCHBEIN, MICHAEL S. 354
FOOTE, SCOTT D. 3,750
FOOTE, STEVEN D. 11,414
FULLERTON, STEPHEN D. 2,598
GARABED, JOSEPH T. 2,656
GARRITY, THOMAS J. 1,661
GEER, JR., DANIEL E. 43,999
GOLIN, ERIC 625
GOSSELS, JONATHAN G. 4,688
GRANGER, NATHALIE 229
GRECO, PIETRO 1,198
GRIER, JAMES R. 2,417
GRIMMOND, PETER 844
GRZANOWSKI, KATHLEEN A. 1,563
HALL, SALLY 1,579
HANAFEE, DAVID J. 625
HARRIS, THERESA 83
HILBRICH, ELLEN 5,469
HILTON, NANCY 25,683
HOBAN, RALEIGH ANN 870
HOROWITZ, MARC 4,833
ISHII, KENNETH 864
JACOBS, JEANNE C. 1,484
JASPAN, BARRY 5,037
JENNINGS, DONALD J. 559
JOHNSON, BRAD C. 938
JONES, PETER 25,000
JONES, TIMOTHY B. 13,417
KAMENS, JONATHAN I. 5,750
KASSEM, OMAR 94
KASSEM, OMAR 47
KENDALL, LESLIE R. 438
KOGAN, ILYA 281
KREYSAR, RICHARD D. 32,031
KROGUE, MARLO AND ANDREA JILL 1,320
LANUM, ASA 4,000
</TABLE>
6
<PAGE> 7
<TABLE>
<CAPTION>
NAME NO. OF SHARES
- -------------------------------------------------------------------
<S> <C>
LAROCCA, LISA 63
LAWRENCE, BARRY 219
LAWTHERS, PETER 625
LEBOVITZ, GREGG 1,913
LECHNER, MIKEL C. 365
LEE, ALEXANDRA 313
LEMAY, PIERRE 599
LINN, JOHN 2,782
LIRA, JUAN 292
LITTELL, ROBERT W. 1,172
LOCKHART, ANDREW 2,479
LOCOCO, S. THOMAS 1,328
LONG, ANTOINETTE 94
LUBARR, JOSH 957
MAGOME, KAY 156
MAHONEY, TERENCE 1,250
MARCUS, EVAN L. 313
MARRA, JOHN B. 469
MARSHALL, DAVID 250
MARTINEZ, SABIANO B. 365
MARTYN, SONIA 303
MATTOS, STEVEN H. 1,563
MAZZARELLA, PAUL 677
MCCLAIN, FRED 7,312
MCCULLAR, STEVEN J. 292
MCDERMOTT, ELLEN M. 582
MENDELSON MORRIS, LESLIE 200
MEYERS, BETH J. 156
MILLER, GRETCHEN A. 1,630
MOGHTANEI, ABBAS 125
MOORE, LORRAINE A. 7,813
MUENKEL, BRIAN J. 880
MURPHY, III, PRESCOTT V. 407
NGUYEN, VY T. 188
NOBLE, KENNETH H. 818
NONNEMACHER, STEVEN F. 7,589
O'BRIEN, JANE S. 99
O'BRIEN, RENEE M. 89
O'MEARA, PATRICIA 68
</TABLE>
7
<PAGE> 8
<TABLE>
<CAPTION>
NAME NO. OF SHARES
- -------------------------------------------------------------------
<S> <C>
PANSCH, DOUGLAS 3,500
PARKER, BRUCE D. 1,189
PHO, TIEN T. 248
PITONAK, NEAL P. 203
PONS, JACQUELINE D. 101
POULIN, MARCUS 250
PRICE, JEFFREY 174
PRIEVE, ROBERT J. 1,500
PURCELL, MICHAEL J. 308
QUIGGLE, AARON 1,064
QUIGGLE, PAUL 1,064
RAUEN, CHRISTOPHER A. 1,091
RICH, DOUGLAS J. 2,384
RICHARDSON, KYLE LUCERO 446
RIGGINS, M. CHRIS 1,112
RILEY, STEPHEN D. 94
RIOPEL, GREGORY J. 128
RIOPEL, ROBERT J. 48,438
RIVET, JEAN-FRANCOIS 599
ROCHLIS, JON A. 3,723
ROMAN, DENNIS M. 1,667
ROWLEY, ELIZABETH LEE 53
SANTOS, DAVID 599
SAUER, BARBARA E. 188
SCHALLOP, ALAN 11,875
SCHECKLA, WADE W. 234
SCHERM, III, ALBERT E. 4,792
SCHOBER, STEFAN M. 1,277
SCHWARTZMAN, MICHAEL 594
SCOTT, DAVID M. 885
SHANZER, MICHAEL S. 969
SHARP, LAWRENCE E. 17,188
SHORT, ANNMARIE R. 833
SIANO, ROSE 198
SIMONSON, LILY 1,064
SIMONSON, MARCIA 1,063
SIMONSON, SARAH 1,064
SKOLNICK, ALEC & EMILY 930
SKOLNICK, ELLEN 1,063
</TABLE>
8
<PAGE> 9
<TABLE>
<CAPTION>
NAME NO. OF SHARES
- -------------------------------------------------------------------
<S> <C>
SKOLNICK, GIANCARLO 1,064
SKOLNICK, JOSHUA 1,064
SKOLNICK, MARK 9,516
SKUSE, RICHARD N. 3,500
SMITH, DAVE L. 938
SMITH, EARL 188
SPARACO, ANGELA 134
SPOON, JENNIFER 7,306
STEINER KLEIN, JENNIFER 406
STEVENS, CRAIG 36,380
STIEGER, FRANCOIS 25,000
STOCKMAN, CHERYL 1,948
STONER, TRACY L. 178
STRAUS, DAVID 15,625
SULLIVAN, SCOTT A. 885
SUTTER, LOUISE GUILLOTTE 404
SWEENEY, JEANNE 938
TAYCHAKHOONAVUDH, NEERHACHA 1,000
TAYLOR WINFIELD CORPORATION 10,000
THOMAS, JANU I. 1,792
TRAWICK, ANDRE 1,095
TRIMBLE, DARRYL P. 27,188
TRINER, BRUCE 1,250
TROJAN, RANDY L. 625
TURNER-BAKER, BETTY 89
VANHAREN, CHRIS 1,787
VITALE, VICTORIA 1,094
VOGEL, WILLIAM R. 1,979
VORUGANTI, KAMALAKAR 1,119
WALD, RANDY D. 1,979
WALDRON, DAVID L. 167
WALENTA, CHARLES 125
WILLIAMS, AILEANE J. 101
WOOD, JEREMY 2,552
WOOD, SLOAN D. 313
WOODWARD, MARY C. 1,563
YERKES, CHARLES J. 203
ZARROW, ROBERT 938
</TABLE>
9
<PAGE> 10
<TABLE>
<CAPTION>
NAME NO. OF SHARES
- -------------------------------------------------------------------
<S> <C>
ZOLOT, KENNETH C. 47,650
TOTAL 784,977
</TABLE>
PLAN OF DISTRIBUTION
The Company has been advised by the Selling Stockholders that they
intend to sell all or a portion of the shares offered hereby from time to time
in the over-the-counter market and that sales will be made at prices prevailing
in the public market at the times of such sales. The Selling Stockholders may
also make private sales directly or through a broker or brokers, who may act as
agent or as principal. Further, the Selling Stockholders may choose to dispose
of the shares offered hereby by gift to a third party or as a donation to a
charitable or other non-profit entity. In connection with any sales, the Selling
Stockholders and any brokers participating in such sales may be deemed to be
underwriters within the meaning of the Securities Act.
Any broker-dealer participating in such transactions as agent may
receive commissions from the Selling Stockholders (and, if such broker acts as
agent for the purchaser of such shares, from such purchaser). Usual and
customary brokerage fees will be paid by the Selling Stockholders.
Broker-dealers may agree with the Selling Stockholders to sell a specified
number of shares at a stipulated price per share, and, to the extent such a
broker-dealer is unable to do so acting as agent for the Selling Stockholders,
to purchase as principal any unsold shares at the price required to fulfill the
broker-dealer commitment to the Selling Stockholders. Broker-dealers who acquire
shares as principal may thereafter resell such shares from time to time in
transactions (which may involve crosses and block transactions and which may
involve sales to and through other broker-dealers, including transactions of the
nature described above) in the over-the-counter market, in negotiated
transactions or otherwise at market prices prevailing at the time of sale or at
negotiated prices, and in connection with such resales may pay to or receive
from the purchasers of such shares commissions computed as described above.
The Company has advised the Selling Stockholders that the
anti-manipulative Rules 10b-6 and 10b-7 under the Exchange Act may apply to
sales in the market and has informed them of the possible need for delivery of
copies of this Prospectus. The Selling Stockholders may indemnify any
broker-dealer that participates in transactions involving the sale of the shares
against certain liabilities, including liabilities arising under the Securities
Act. Any commissions paid or any discounts or concessions allowed to any such
broker-dealers, and, if any such broker-dealers purchase shares as principal,
any profits received on the resale of such shares, may be deemed to be
underwriting discounts and commissions under the Securities Act.
Upon the Company's being notified by the Selling Stockholders that any
material arrangement has been entered into with a broker-dealer for the sale of
shares through a cross or block trade, a supplemental prospectus will be filed
under Rule 424(c) under the Securities Act, setting forth the name of the
participating broker-dealer(s), the number of shares involved, the price at
which such shares were sold by the Selling Stockholders, the commissions paid or
discounts or concessions allowed by the Selling Stockholders to such
broker-dealer(s), and where applicable, that such broker-dealer(s) did not
conduct any investigation to verify the information set out in this Prospectus.
Any securities covered by this Prospectus which qualify for sale
pursuant to Rule 144 under the Securities Act may be sold under that Rule rather
than pursuant to this Prospectus.
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<PAGE> 11
There can be no assurance that the Selling Stockholders will sell any
or all of the shares of Common Stock offered hereunder.
SECURITIES TO BE OFFERED
The Shares offered hereby are shares of Common Stock, $.001 par value,
of the Company. Each share of such Common Stock entitles the holder to one vote
on matters submitted to a vote of the stockholders, a pro rata share of such
dividends as may be declared on the Common Stock and a pro rata share of assets
remaining available for distribution to stockholders upon a liquidation of the
Company. Such Common Stock is not convertible and has no preemptive rights.
While the Board of Directors has authority, within certain limitations, to issue
shares of Preferred Stock which would have one or more preferences over the
Common Stock, no Preferred Stock is currently outstanding and the Company has no
present plans to issue any Preferred Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law
(the "DGCL"), Article IX of the Company's Restated Certificate of Incorporation
(the "Restated Certificate of Incorporation") eliminates the liability of the
Company's directors to the Company or its stockholders, except for liabilities
related to breach of duty of loyalty, actions not in good faith and certain
other liabilities.
Section 145 of the DGCL provides for indemnification by the Company of
its directors and officers. In addition, Article VI of the Company's Bylaws
requires the Company to indemnify any current or former director or officer to
the fullest extent permitted by the DGCL. In addition, the Company has entered
into indemnity agreements with its directors and executive officers that
obligate the Company to indemnify such directors and executive officers to the
fullest extent permitted by the DGCL. The Company also maintains officers' and
directors' liability insurance, which insures against liabilities that officers
and directors of the Company may incur in such capacities.
Pursuant to that certain Underwriting Agreement among the Company and
the underwriters of the Company's initial public offering dated May 6, 1996, the
Company's officers and directors and other persons who control the Company are
indemnified against any and all losses, claims, damages or liabilities to which
such persons may become subject under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), or otherwise that arise out of any untrue statement or
omission of a material fact contained in the registration statement for such
initial public offering if such statement or omission was made in reliance upon
and in conformity with information provided to the Company in writing by any
underwriter of the Company's initial public offering.
INFORMATION INCORPORATED BY REFERENCE
There are hereby incorporated by reference in this Prospectus the
following documents and information heretofore filed with the Securities and
Exchange Commission:
(1) The Company's Registration Statement on Form S-1 (file no.
333-1724) under the Securities Act, in the form declared effective on May 6,
1996, including the Prospectus dated May 7, 1996 as filed by the Company
pursuant to Rule 424(b) on May 7, 1996.
11
<PAGE> 12
(2) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed April 26, 1996 pursuant to
Section 12(g) of the Exchange Act and declared effective May 6, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents.
12
<PAGE> 13
REGISTRATION STATEMENT ON FORM S-8/S-3
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission by OpenVision Technologies, Inc. (the
"COMPANY") are hereby incorporated by reference in this Registration Statement:
(1) The Company's Registration Statement on Form S-1 (file no.
333-1724) under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
in the form declared effective on May 6, 1996 including the Prospectus dated May
7, 1996 as filed by the Company pursuant to Rule 424(b) on May 7, 1996.
(2) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed April 26, 1996 pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT") and declared effective May 6, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Counsel for the Company, Wilson, Sonsini, Goodrich & Rosati,
Professional Corporation, 650 Page Mill Road, Palo Alto, California 94304, has
rendered an opinion to the effect that the Common Stock offered hereby, when
offered and sold in accordance with the related plans and agreements, will be
duly and validly issued, fully paid and nonassessable. A member of Wilson
Sonsini Goodrich & Rosati, Professional Corporation, beneficially owns 5,000
shares of the Company's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law
(the "DGCL"), Article X of the Company's Restated Certificate of Incorporation
(the "Restated Certificate of Incorporation") eliminates the liability of the
Company's directors to the Company or its stockholders, except for liabilities
related to breach of duty of loyalty, actions not in good faith and certain
other liabilities.
<PAGE> 14
Section 145 of the DGCL provides for indemnification by the Company of
its directors and officers. In addition, Article VI of the Company's Bylaws
requires the Company to indemnify any current or former director or officer to
the fullest extent permitted by the DGCL. In addition, the Company has entered
into indemnity agreements with its directors and executive officers that
obligate the Company to indemnify such directors and executive officers to the
fullest extent permitted by the DGCL. The Company also maintains officers' and
directors' liability insurance, which insures against liabilities that officers
and directors of the Company may incur in such capacities.
Pursuant to that certain Underwriting Agreement among the Company and
the underwriters of the Company's initial public offering dated May 6, 1996, the
Company's officers and directors and other persons who control the Company are
indemnified against any and all losses, claims, damages or liabilities to which
such persons may become subject under the Securities Act, or otherwise that
arise out of any untrue statement or omission of a material fact contained in
the registration statement for such initial public offering if such statement or
omission was made in reliance upon and in conformity with information provided
to the Company in writing by any underwriter of the Company's initial public
offering.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The issuance of the shares being offered by the Form S-3 resale
prospectus were deemed exempt from registration under the Securities Act in
reliance upon Rule 701 promulgated under the Securities Act.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------------------------------------------------------------------------------
<S> <C>
4.1* 1996 Employee Stock Purchase Plan with form of Subscription Agreement.
4.2* 1996 Director Option Plan with forms of agreements used thereunder.
4.3* 1992 Stock Option Plan with forms of agreements used thereunder.
5.1 Opinion of counsel as to legality of original issuance securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP (see page II-7).
24.1 Power of Attorney (see page II-5).
</TABLE>
- ---------------------
* Incorporated by reference to the Registrant's Registration Statement
on Form S-1 (File No. 333-1724), as amended, declared effective on
May 6, 1996.
II-2
<PAGE> 15
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement 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, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8/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 Alameda, State of California, on this 6th day of May,
1996.
OPENVISION TECHNOLOGIES, INC.
By: /s/ Michael S. Fields
-----------------------------
Michael S. Fields
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Michael S. Fields, Geoffrey W.
Squire and Jay A. Jones, and each of them acting individ ually, 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 on
Form S-8/S-3, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact, or his substitutes, may
do or cause to be done by virtue hereof.
II-4
<PAGE> 17
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on the 6th day of May, 1996 by the
following persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------------- -----------------------------------------------------
<S> <C>
/s/ Michael S. Fields Chairman of the Board
- --------------------------------------------
(Michael S. Fields)
/s/ Geoffrey W. Squire Chief Executive Officer (Principal Executive
- --------------------------------------------
(Geoffrey W. Squire) Officer)
/s/ Kenneth E. Lonchar Chief Financial Officer (Principal Financial Officer
- --------------------------------------------
(Kenneth E. Lonchar) and Principal Accounting Officer)
/s/ Thomas J. Connors Director
- --------------------------------------------
(Thomas J. Connors)
/s/ Stewart K.P. Gross Director
- --------------------------------------------
(Stewart K.P. Gross)
/s/ William H. Janeway Director
- --------------------------------------------
(William H. Janeway)
Director
- --------------------------------------------
(Jeanne Wohlers)
</TABLE>
II-5
<PAGE> 18
EXHIBIT 23.2
CONSENT OF ERNTS & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8/S-3) and related Prospectus pertaining to the 1996 Employee Stock Purchase
Plan, 1996 Director Option Plan and 1992 Stock Plan of OpenVision Technologies,
Inc. of our report dated February 23, 1996 with respect to the consolidated
financial statements and schedule of OpenVision Technologies, Inc. incorporated
by reference in its Registration Statement (Form S-1 No. 333-1724) filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Jose, California
May 7, 1996
II-6
<PAGE> 19
OPENVISION TECHNOLOGIES, INC.
REGISTRATION STATEMENT ON FORM S-8/S-3
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
------- ----------------------------------------------------------------------- ------------
<S> <C> <C>
4.1* 1996 Employee Stock Purchase Plan with form of Subscription
Agreement..............................................................
4.2* 1996 Director Option Plan with forms of agreements used
thereunder.............................................................
4.3* 1992 Stock Plan with forms of agreements used thereunder...............
5.1 Opinion of counsel as to legality of original isuance securities
being registered.......................................................
23.1 Consent of counsel (contained in Exhibit 5.1) .........................
23.2 Consent of Ernst & Young LLP (see page II-7)...........................
24.1 Power of Attorney (see page II-5) .....................................
</TABLE>
- ---------------------
* Incorporated by reference to the Registrant's Registration Statement
on Form S-1 (File No. 333-1724), as amended, declared effective on
May 6, 1996.
<PAGE> 1
EXHIBIT 5.1
May 6, 1996
OpenVision Technologies, Inc.
7133 Koll Center Parkway, Suite 200
Pleasanton, CA 94566
RE: REGISTRATION STATEMENT ON FORM S-8/S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8/S-3 to be filed
by you with the Securities and Exchange Commission on or about May 7, 1996 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 4,244,847 shares of your Common Stock
(the "Shares"), 300,000 of which are to be issued pursuant to the 1996 Employee
Stock Purchase Plan, 250,000 of which are to be issued pursuant to the 1996
Director Option Plan and 2,909,870 of which are to be issued and 784,977 of
which have been issued pursuant to the 1992 Stock Plan (together, the "Plans").
As your legal counsel, we have examined the proceedings proposed to be taken in
connection with the issuance and sale of the Shares to be issued under the
Plans.
It is our opinion that the Shares that have been issued are, and the
Shares to be issued, when issued and sold in the manner referred to in the Plans
and pursuant to the agreements which accompany the Plans, 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 wherever appearing in the
Registration Statement, including any Prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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