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As filed with the Securities and Exchange Commission on September 26, 1997
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DELAWARE THE VANTIVE CORPORATION 77-0266662
<S> <C> <C>
(State or Other Jurisdiction (Exact Name of Registrant (I.R.S. Employer
of Incorporation or Organization) as Specified in its Charter) Identification Number)
</TABLE>
2455 Augustine Drive
Santa Clara, California 95054
(408) 982-5700
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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JOHN R. LUONGO
President, Chief Executive Officer,
THE VANTIVE CORPORATION
2455 Augustine Drive
Santa Clara, California 95054
(408) 982-5700
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
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Copy to:
Gregory M. Gallo, Esq.
Thomas W. Furlong, Esq.
William R. Schreiber, Esq
GRAY CARY WARE & FREIDENRICH
400 Hamilton Avenue
Palo Alto, California 94301
(415) 328-6561
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to a 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, other than securities offered only in connection with dividend or
interest reinvestment plans, 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 Act amendment filed pursuant to Rule
462(c) 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Amount Proposed Maximum Proposed Maximum
Title of Shares to be Aggregate Price Per Aggregate Amount of
to be Registered Registered Unit Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, 655,571 shares $25.125(1) $16,471,221(2) $4,992(2)
$0.001 No par value
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(1) Estimated solely for the purpose of computing the registration fee.
(2) Computed pursuant to Rule 457(c) based upon the average high and low sale
prices reported on the Nasdaq National Market for September 23, 1997.
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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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
655,571 SHARES
THE VANTIVE CORPORATION
COMMON STOCK
The 655,571 shares (the "Shares") of Common Stock of The Vantive
Corporation, a Delaware corporation ("Vantive" or the "Company"), offered by
this Prospectus were issued in connection with the merger of Innovative Computer
Concepts, Inc., a Delaware corporation ("ICC"), with and into Vantive, which was
consummated on August 26, 1997 (the "ICC Merger"), and the exercise of options
assumed by Vantive in connection with the ICC Merger. The Shares may be sold
from time to time by or on behalf of certain former stockholders and option
holders of ICC (the "Selling Stockholders") who are described in this Prospectus
under "Selling Stockholders." As part of the ICC Merger, the Company has agreed
to register the Shares under the Securities Act of 1933, as amended (the
"Securities Act"). The Company has also agreed to use its best efforts to cause
the registration statement covering the Shares to remain effective until August
26, 1998, provided the Company is then making available "current public
information" within the meaning of Rule 144(c) under the Securities Act (and if
such information is not then being made available by the Company, then until the
first date thereafter that the Company is making such information available).
The Company will not receive any of the proceeds from the sale of the Shares by
the Selling Stockholders. See "Use of Proceeds."
The Company has been advised by the Selling Stockholders that they
intend to sell all or a portion of the Shares from time to time in The Nasdaq
National Market, in negotiated transactions or otherwise, and on terms and at
prices then obtainable. The Selling Stockholders and any broker-dealers, agents
or underwriters that participate with the Selling Stockholders in the
distribution of any of the Shares may be deemed to be "underwriters" within the
meaning of the Securities Act, and any commission received by them and any
profit on the resale of the Shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. The Company has
agreed to indemnify in certain circumstances the Selling Stockholders against
certain liabilities, including liabilities under the Securities Act. The Selling
Stockholders have agreed to indemnify in certain circumstances the Company
against certain liabilities, including liabilities under the Securities Act. See
"Plan of Distribution."
The Company will bear all out-of-pocket expenses incurred in
connection with the registration of the Shares, including, without limitation,
all registration and filing fees imposed by the Securities and Exchange
Commission (the "Commission"), the National Association of Securities Dealers
("NASD") and blue sky laws, printing expenses, transfer agents' and registrars'
fees, and the reasonable fees and disbursements of the Company's outside counsel
and independent accountants and a single counsel for all of the Selling
Stockholders, but excluding underwriting discounts and commissions and transfer
or other taxes and other costs and expenses incident to the offering and sale of
the shares to the public which shall be borne by the Selling Stockholders.
THE SHARES HAVE NOT BEEN REGISTERED FOR SALE UNDER THE SECURITIES LAWS
OF ANY STATE OR JURISDICTION AS OF THE DATE OF THIS PROSPECTUS. BROKERS OR
DEALERS EFFECTING TRANSACTIONS IN THE SHARES SHOULD CONFIRM THE REGISTRATION OF
THE SHARES UNDER THE SECURITIES LAWS OF THE STATES IN WHICH SUCH TRANSACTIONS
OCCUR, OR THE EXISTENCE OF ANY EXEMPTIONS FROM SUCH REGISTRATION.
The Company's Common Stock is quoted on The Nasdaq National Market. On
September 23, 1997, the last sales price of the Company's Common Stock as
reported on The Nasdaq National Market was $26.125.
______________________________
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE PURCHASERS OF THE SHARES OFFERED HEREBY.
______________________________
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 September _____, 1997.
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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 reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the Commission's public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549, as well as at the Regional Offices of the Commission
located at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60611 and 7 World Trade Center, Suite 1300, New York, New
York 10048. Copies of such material can also be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, upon payment of the fees prescribed by the Commission.
The Company's Common Stock is traded on The Nasdaq National Market. Reports
and other information concerning the Company can also be inspected at the
offices of the National Association of Securities Dealers, Inc., Market Listing
Section, 1735 K Street, N.W., Washington, D.C. 20006. Such reports and other
information may also be inspected without charge at a Web site maintained by
the Commission. The address of the site is http:\\www.sec.gov.
The Company has also filed with the Commission a Registration
Statement on Form S-3 (together with all amendments and exhibits thereto, the
"Registration Statement") under the Securities Act. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is made to the Registration
Statement, copies of which may be obtained from the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, upon payment of
the fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are incorporated herein by reference:
1. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on August
9, 1995;
2. Annual Report on Form 10-K for the year ended December 31,
1996;
3. Quarterly Reports on Form 10-Q for the three-month periods
ended March 31, 1997 and June 30, 1997;
4. Current Report on Form 8-K filed on September 26, 1997.
All documents and reports subsequently 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 this offering shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents or reports. Any statement contained in a document
incorporated by reference or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus. The Company will provide without charge to each person to
whom this Prospectus is delivered, upon written or oral request, a copy of any
or all of the foregoing documents incorporated by reference in this Prospectus
(other than any exhibits thereto). Requests for such documents should be
submitted in writing to The Vantive Corporation, 2455 Augustine Drive, Santa
Clara, California 95054, Attention: Chief Financial Officer, or by telephone
at (408) 982-5700.
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THE COMPANY
Vantive is a leading provider of Customer Asset Management applications
software that enables businesses to attract, acquire, retain, and leverage
customers by automating marketing and sales, customer support, defect tracking,
field service and internal help desk functions. These tightly integrated
Customer Asset Management applications, called the Vantive Enterprise, are based
on a multi-tiered client/server architecture and a common data model. The
Company's Customer Asset Management applications may also be used through a
Web-based browser, thereby providing the applications directly to the end-user
outside the boundaries of the business. The software can be used independently
or as part of an integrated, enterprise-wide, Customer Asset Management
information system. The Company believes businesses implementing a Customer
Asset Management information system can better manage relationships by
leveraging valuable customer information that is shared throughout the
organization. The Company's software applications have been deployed by
businesses in a broad range of industries, including software, communications,
consumer products, finance, outsourcing/services, personal computer hardware,
healthcare, manufacturing, medical projects, public sector/regulated industry,
online services, consumer goods and retail.
Vantive Enterprise, a complete set of Web-enabled, client/server
software applications, is the Company's integrated Customer Asset Management
information system. These applications, each of which can be purchased
separately or integrated in any combination, enable businesses to leverage
customer information on an enterprise-wide basis, ensuring that the right
customer information goes to the right person at the right time. Vantive
Enterprise currently includes Vantive Sales, Vantive Support, Vantive HelpDesk,
Vantive Quality, and Vantive FieldService. Each component provides easy-to-use,
"best of breed" functionality for each of the respective segments of the
Customer Asset Management market. The Company has designed its solution to be
fully expandable through the enterprise by sharing a common database and
application architecture along with common facilities of intelligent workflow
routing, advanced problem solving and measurement reporting. By building the
applications using a three-tier application architecture, Vantive believes its
applications are made scaleable and easier to maintain than competing two-tier
implementations. This architecture also results in a smaller client footprint,
less network traffic and more efficient use of database resources. This
three-tier architecture is also well-suited for Web-based applications. The
Company markets and sells its software and services in the United States
primarily through a direct sales organization consisting of 182 employees,
including 65 quota carrying salespeople, as of June 30, 1997. The Company
markets its products outside of the United States through wholly-owned
subsidiaries and independent distributors.
An important element of the Company's distribution strategy is to
expand its direct sales force, to create additional relationships with third
parties and to dedicate certain direct sales resources and leverage third party
relationships toward key vertical markets. The Company has recently hired and
continues to hire significant numbers of direct sales personnel and has
developed relationships with several high-end integrators and resellers,
including EDS, Deloitte & Touche, Price Waterhouse, KPMG Peat Marwick, HBO and
Company and Lucent Technologies.
On August 26, 1997, the Company completed the ICC Merger, pursuant to
which ICC, a leading developer of software that improves spare parts management
for field service operations, became a wholly-owned subsidiary of the Company.
Under the terms of the agreement, ICC's securityholders received approximately
688,000 shares of the Company's Common Stock in exchange for all outstanding
shares and options of ICC. The ICC Merger has been accounted for as a purchase,
and Vantive expects to recognize substantially all of the acquisition price as a
one-time pretax charge ranging between $20.7 million-$21.2 million for
in-process technology in the third quarter of 1997.
The Company was incorporated in California on October 25, 1990 and
reincorporated in Delaware on August 10, 1995. The Company's principal executive
offices are located at 2455 Augustine Drive, Santa Clara, California 95054, and
its telephone number is (408) 982-5700.
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RISK FACTORS
The following risk factors should be considered in conjunction with the
other information included and incorporated by reference in its Prospectus
before purchasing the Common Stock offered hereby. This Prospectus contains
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 (the "Securities Act") and Section 21E of the Securities Exchange
Act. Actual results could differ materially from those projected in these
forward-looking statements as a result of a variety of factors, including those
set forth below and elsewhere in this Prospectus.
FLUCTUATIONS IN OPERATING RESULTS
The Company has experienced significant period-to-period fluctuations
in revenues and operating results and anticipates that such fluctuations will
continue. These fluctuations may be attributable to a number of factors,
including the size, timing and recognition of revenue from significant orders,
increased competition, the timing of new product releases by the Company and its
competitors, market acceptance of the Company's products, changes in the
Company's and its competitors' pricing policies, the mix of license and service
revenue, budgeting cycles of its customers, seasonality, the mix of direct and
indirect sales, changes in operating expenses, changes in Company strategy,
personnel changes, foreign currency exchange rates and general economic factors.
The future operating results of the Company may fluctuate as a result of these
and other factors, including demand for the Company's products, the level of
product and price competition, the ability of the Company to develop and market
new products and to control costs, the ability of the Company to expand its
direct sales force and indirect distribution channels and the ability to attract
and retain key personnel.
A significant portion of the Company's revenues in any quarter are
typically derived from non-recurring sales to a limited number of customers.
Accordingly, revenues in any one quarter are not indicative of revenues in any
future period. In addition, like many software applications businesses, the
Company has generally recognized a substantial portion of its revenues in the
last month of each quarter, with these revenues concentrated in the last weeks
of the quarter. Any significant deferral of purchases of the Company's products
could have a material adverse effect on the Company's business, results of
operations and financial condition in any particular quarter, and to the extent
that significant sales occur earlier than expected, operating results for
subsequent quarters may be adversely affected. Product revenues are also
difficult to forecast because the market for Customer Asset Management software
products is rapidly evolving. The Company's sales cycle is typically six to nine
months and varies substantially from customer to customer. The Company expects
that sales derived through indirect channels, which are harder to predict and
may have lower margins than direct sales, will increase as a percentage of total
revenues. The Company operates with little order backlog because its products
are typically shipped shortly after orders are received. As a result of these
factors, quarterly revenues for any future quarter are not predictable with any
significant degree of certainty. The Company's expense levels are based, in
part, on its expectations as to future revenues. In particular, the Company is
currently investing, and intends to continue to invest, significant resources to
develop its sales strategy, which includes hiring significant numbers of direct
sales personnel, and developing relationships with high-end integrators and
resellers. If revenues are below expectations, operating results are likely to
be adversely affected. Net income may be disproportionately affected by a
reduction in revenues, because a significant portion of the Company's expenses
do not vary with revenues. The Company may also choose to reduce prices or
increase spending in response to competition or to pursue new market
opportunities. In particular, if new competitors, technological advances by
existing competitors, or other competitive factors require the Company to invest
significantly greater resources in research and development efforts, the
Company's operating margins in the future may be adversely affected. The
foregoing statements regarding the Company's future revenues and net income are
forward-looking statements, and actual results may vary substantially depending
upon a variety of factors described in this paragraph and elsewhere in this
Prospectus.
Because of these factors, the Company believes that period-to-period
comparisons of its results of operations are not necessarily meaningful and that
such comparisons should not be relied upon as indications of future performance.
Due to all of the foregoing factors, it is likely that in some future quarter
the Company's operating results will be below the expectations of public market
analysts and investors. In such event, the price of the Company's Common Stock
would likely be materially adversely affected.
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RAPID TECHNOLOGICAL CHANGE AND PRODUCT DEVELOPMENT RISKS
The Customer Asset Management market is subject to rapid technological
change, changing customer needs, frequent new product introductions and evolving
industry standards that may render existing products and services obsolete. As a
result, the Company's position in its existing markets or other markets that it
may enter could be eroded rapidly by product advances. The life cycles of the
Company's products are difficult to estimate. The Company's growth and future
financial performance will depend in part upon its ability to enhance existing
applications, develop and introduce new applications that keep pace with
technological advances, meet changing customer requirements, respond to
competitive products and achieve market acceptance. For example, the Company's
customers have adopted a wide variety of hardware, software, database,
Internet-based and networking platforms, and as a result, to gain broad market
acceptance, the Company must continue to support and maintain its products on a
variety of such platforms. The Company's future success will depend on its
ability to address the increasingly sophisticated needs of its customers by
supporting existing and emerging hardware, software, database, Internet-based
and networking platforms and by developing and introducing enhancements to its
products and new products on a timely basis that keep pace with technological
developments, evolving industry standards and changing customer requirements.
The success of the Company's products may also depend, in part, on the ability
of the Company to effectively distribute its products through the Internet.
There can be no assurance that the Company will be able to successfully change
other aspects of its business, such as its distribution channels or cost
structure, if technological changes in its market require such change. The
Company's product development efforts are expected to require, from time to
time, substantial investments by the Company in product development and testing.
There can be no assurance that the Company will have sufficient resources to
make the necessary investments. The Company has in the past experienced
development delays, and there can be no assurance that the Company will not
experience such delays in the future. There can be no assurance that the Company
will not experience difficulties that could delay or prevent the successful
development, introduction or marketing of new or enhanced products, including
but not limited to, Vantive Version 7.0, Vantive Version 7.5 and Van Web 3.0. In
addition, there can be no assurance that such products will meet the
requirements of the marketplace and achieve market acceptance or that the
Company's current or future products will conform to industry requirements. If
the Company is unable, for technological reasons, to develop and introduce new
and enhanced products in a timely manner, the Company's business, results of
operations and financial condition could be materially adversely affected.
Software products as complex as those offered by the Company may
contain errors that may be detected at any point in the products' life cycles.
The Company has in the past discovered software errors in certain of its
products and has experienced delays in shipment of products during the period
required to correct these errors. There can be no assurance that, despite
testing by the Company and by current and potential customers, errors will not
be found, resulting in loss of, or delay in, market acceptance and sales,
diversion of development resources, injury to the Company's reputation, or
increased service and warranty costs, any of which could have a material adverse
effect on the Company's business, results of operations and financial condition.
NEED TO EXPAND DISTRIBUTION CHANNELS AND SUCCESSFULLY LEVERAGE THIRD PARTY
RELATIONSHIPS
An important element of the Company's distribution strategy is to
expand its direct sales force, to create additional relationships with third
parties and to dedicate certain direct sales resources and leverage third party
relationships toward key vertical markets. An important element of the Company's
product development strategy is to integrate with applications from ERP vendors.
The Company is currently investing, and intends to continue to invest,
significant resources toward these strategies, which could adversely affect the
Company's operating margins. In this regard, the Company has recently hired and
continues to hire significant numbers of direct sales personnel. Competition for
sales personnel is intense, and there can be no assurance that the Company can
retain its existing sales personnel or that it can attract, assimilate and
retain additional highly qualified sales personnel in the future. The strategy
also depends, in large part, on attracting and retaining beneficial third party
relationships. In this regard, the Company has developed relationships with
several high-end integrators and resellers, including EDS, Deloitte & Touche,
Price Waterhouse, KPMG Peat Marwick, HBO and Company and Lucent Technologies,
and announced a strategic relationship with PeopleSoft, an ERP vendor. There
also can be no assurance that the Company will be able to attract and retain
appropriate high-end integrators, resellers, other third party distributors or
ERP vendors. The Company's agreements with these third parties are not exclusive
and, in many cases, may be terminated by either party without cause. In
addition, many of these third parties sell or co-market competing
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product lines. Therefore, there can be no assurance that any of these parties
will continue to represent or recommend the Company's products. There also can
be no assurance that the Company will effectively identify key vertical
markets. The inability to recruit, or the loss of, important direct sales
personnel, high-end integrators, resellers, other third party distributors or
ERP vendors, or the failure to effectively identify key vertical markets, could
have a material adverse effect on the Company's business, results of operations
and financial condition.
INTERNATIONAL OPERATIONS, FOREIGN CURRENCY FLUCTUATIONS
International revenue, or revenue derived from sales to customers in
foreign countries, accounted for approximately 19.0%, 9.8%, 9.3% and 13.9% of
the Company's revenue in 1994, 1995, 1996 and the first six months of 1997,
respectively. The Company believes that its continued growth and profitability
will require further expansion of its international operations. To
successfully expand international sales, the Company must establish additional
foreign operations, hire additional personnel and recruit additional
international resellers. To the extent that the Company is unable to do so in
a timely manner, the Company's growth in international sales, if any, will be
limited, and the Company's business, results of operations and financial
condition could be materially adversely affected. In addition, as European
revenues increase as a percentage of overall revenues, the Company's business,
results of operations and financial condition may be adversely affected by the
seasonality of European procurement cycles. As the Company continues to expand
its international operations, significant costs may be incurred ahead of any
anticipated international revenues, which could have a material adverse effect
on the Company's business, results of operations and financial condition. In
addition, future increases in the value of the U.S. dollar could make the
Company's products less competitive in foreign markets. As the Company
increases its foreign sales, it may be materially and adversely affected by
fluctuations in currency exchange rates, increases in duty rates, exchange or
price controls or other restrictions on foreign currencies. Additional risks
inherent in the Company's international business activities generally include
unexpected changes in regulatory requirements, tariff and other trade
barriers, costs of localizing products for foreign countries, lack of
acceptance of localized products in foreign countries, longer accounts
receivable payment cycles, difficulties in managing international operations,
potentially adverse tax consequences including restrictions on the repatriation
of earnings and the burdens of complying with a wide variety of foreign laws.
There can be no assurance that such factors will not have a material adverse
effect on the Company's future international sales and, consequently, the
Company's business, results of operations and financial condition.
COMPETITION
The Customer Asset Management software market is intensely
competitive, highly fragmented and subject to rapid change. Because the
Company offers multiple software applications which can be purchased separately
or integrated as part of Vantive Enterprise, the Company competes with a
variety of other businesses depending on the target market for their
applications software products. These competitors include a select number of
businesses targeting the enterprise level and department level Customer Asset
Management markets, such as Aurum Software, Inc. (which has been recently
acquired by the Baan Company), Clarify, Inc., Onyx Software, Scopus Technology
and Siebel Systems, Inc. some of which have only recently entered these
markets. The Company also competes with a substantial number of small private
businesses and certain public businesses which offer products targeted at one
or more specific markets, including the customer support market, the help desk
market, the quality assurance market and the sales and marketing automation
market, such as Remedy Corporation and Software Artistry, Inc. In addition,
the Company believes that existing competitors and new market entrants will
attempt to develop fully integrated customer asset management information
systems. The Company also competes with third party professional service
organizations that develop custom software and with internal information
technology departments of customers which develop customer interaction
applications. Among the Company's current and potential competitors are also a
number of large hardware and software businesses that may develop or acquire
products that compete with the Company's products. In this regard, SAP AG, the
Baan Company and Oracle have each introduced a customer support module as part
of their application suites. In addition, Oracle has recently announced the
creation of a network of third party dealers that will sell Oracle's
application suites exclusively to medium-sized businesses. Oracle has also
announced its intention to introduce sales force automation and customer
support products in the next few months. In addition, the Baan Company has
recently acquired Aurum Software, Inc. The Company expects that large software
vendors in the ERP market will continue to enter the Customer Asset Management
market in the future. These competitors have significantly greater technical,
marketing, services, support, technical and other resources than the Company.
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The Company also expects that competition will increase as a result of
software industry consolidations. Current and potential competitors have
established or may establish cooperative relationships among themselves or with
third parties to increase the ability of their products to address the needs of
the Company's prospective customers. Accordingly, it is possible that new
competitors or alliances among competitors may emerge and rapidly acquire
significant market share. The Company also expects that competition may
increase as a result of both new software start ups entering the market as well
as existing software industry vendors which may be planning to enter the market
for Customer Asset Management applications. Increased competition is likely to
result in price reductions, reduced operating margins and loss of market share,
any of which could materially adversely affect the Company's business, results
of operations and financial condition. Many of the Company's current and
potential competitors have significantly greater financial, marketing, service,
support, technical and other resources than the Company. As a result, they may
be able to respond more quickly to new or emerging technologies and changes in
customer requirements, or to devote greater resources to the development,
promotion, service and sale of their products than can the Company. There can
be no assurance that the Company will be able to compete successfully against
current and future competitors or that competitive pressures faced by the
Company will not materially adversely affect its business, results of
operations and financial condition.
The Company believes that the principal competitive factors affecting
its market include product features such as adaptability, scalability, ability
to integrate with products produced by other vendors, functionality, ease of
use, and other factors such as product reputation, quality, performance, price,
customer service and support, the effectiveness of sales and marketing efforts
and company reputation. Although the Company believes that its products
currently compete favorably with respect to such factors, there can be no
assurance that the Company can maintain its competitive position against
current and potential competitors, especially those with significantly greater
financial, marketing, service, support, technical and other resources.
MANAGEMENT OF EXPANDING OPERATIONS; DEPENDENCE UPON KEY PERSONNEL
The Company's ability to compete effectively and to manage future
growth, if any, will require the Company to continue to improve its financial
and management controls, reporting systems and procedures on a timely basis and
expand, train and manage its employee workforce. There can be no assurance
that the Company will be able to do so successfully. The Company's failure to
do so could have a material adverse effect upon the Company's business, results
of operations and financial condition. The Company has recently hired a
significant number of employees, including senior sales, marketing, research
and development, and finance personnel, and in order to maintain its ability to
grow in the future, the Company will be required to significantly increase its
total headcount. In addition, the Company's future performance depends in
significant part upon attracting and retaining key technical, sales, senior
management and financial personnel. In particular, delays in hiring sales or
research and development personnel may have a material adverse effect on the
Company's business, results of operations and financial condition. The loss of
the services of one or more of the Company's executive officers or the
inability to recruit other additional senior management could have a material
adverse effect on the Company's business, results of operations and financial
condition. Competition for such personnel is intense, and the inability to
retain its key technical, sales, senior management and financial personnel or
to attract, assimilate or retain other highly qualified technical, sales,
senior management, and financial personnel in the future on a timely basis
could have a material adverse effect on the Company's business, results of
operations and financial condition.
INCREASED USE OF THIRD PARTY SOFTWARE
The Company currently markets a proprietary application development
environment for its customers to tailor its applications. This application
development environment is also used by the Company to build and modify its
applications products. While the Company believes, based on interactions with
its customers and potential customers, that it currently derives significant
competitive advantage from this proprietary application development
environment, it believes that competitive pressures, technological changes
demanded by customers, and significant advances in the sophistication of third
party application development tools such as Visual Basic for Applications will
require the Company to make greater use of third party software in the future.
In particular, the Company has recently announced that Vantive Encyclopedia, a
Web-based marketing encyclopedia based on FirstFloor's Java-based server, and
configuration capabilities, based on Calico Technology's configuration engine,
will be available with Vantive Version 7.0. The Company has also announced that
it has entered into a strategic relationship with PeopleSoft with the goal of
jointly developing product integrations between the Vantive Customer Asset
Management and PeopleSoft ERP systems. The greater use of third party software
could require the
7
<PAGE> 9
Company to invest significant resources in rewriting some or all of its
software applications products utilizing third party software and/or to enter
into license arrangements with third parties which could result in higher
royalty payments and a loss of product differentiation. There can be no
assurance that the Company would be able to successfully rewrite its
applications or enter into commercially reasonable licenses, and the costs of,
or inability or delays in, doing so could have a material adverse effect on the
Company's business, results of operations and financial condition.
DEPENDENCE ON EMERGING MARKETS FOR CUSTOMER ASSET MANAGEMENT SOFTWARE; PRODUCT
CONCENTRATION
The Company's future financial performance will depend in large part
on the growth in demand for individual Customer Asset Management applications
as well as the number of organizations adopting comprehensive Customer Asset
Management software information systems for their client/server and Web
computing environments. To date, much of the Company's license revenues have
resulted from sales of individual applications, particularly Vantive Support
and Vantive HelpDesk. The markets for these applications are relatively new
and undeveloped, and failure of these markets to develop would have a material
adverse effect on the Company's business, results of operations and financial
condition. Additionally, the Company is investing in the sales, field service
and quality automation markets. Should these markets fail to develop, not
accept the Company's products, or cause the company to lose new business and or
customers in its traditional markets, the Company would experience a material
adverse effect on the Company's business, results of operations and financial
condition.
The Company believes that an important competitive advantage for its
software applications is its ability to be integrated with one another and with
other back office applications software into a Customer Asset Management
information system. If the demand for integrated suites of Customer Asset
Management applications fails to develop, or develops more slowly than the
Company currently anticipates, it could have a material adverse effect on the
demand for the Company's applications and on its business, results of
operations and financial condition. In addition, any other factor adversely
affecting the demand for the Company's existing applications, particularly
Vantive Support, Vantive HelpDesk and Vantive Quality, or newer applications
such as Vantive-On-The-Go, Vantive Sales or Vantive FieldService, could have a
material adverse effect on the Company's business, results of operations and
financial condition.
8
<PAGE> 10
LEVERAGE; SUBORDINATION
In connection with the sale of its 4.75% Convertible Subordinated
Notes (the "Notes"), the Company has incurred $50 million indebtedness ($57.5
million if the overallotment option is exercised in full) which has resulted in
a ratio of long-term debt to total capitalization at June 30, 1997 of
approximately 52.4% on an as adjusted basis (55.8% if the over-allotment option
is exercised in full) . As a result of this additional indebtedness, the
Company's principal and interest obligations have increased substantially. The
degree to which the Company is leveraged could materially and adversely affect
the Company's ability to obtain financing for working capital, acquisitions or
other purposes and could make it more vulnerable to industry downturns and
competitive pressures. The Company's ability to meet its debt service
obligations is dependent upon the Company's future performance, which will be
subject to financial, business and other factors affecting the operations of
the Company, many of which are beyond its control.
RISKS ASSOCIATED WITH POTENTIAL ACQUISITIONS
As part of its business strategy, the Company expects to review
acquisition prospects that would complement its existing product offerings,
augment its market coverage or enhance its technological capabilities, or that
may otherwise offer growth opportunities. Future acquisitions by the Company
could result in potentially dilutive issuances of equity securities, the
incurrence of debt and contingent liabilities or amortization expenses related
to goodwill and other intangible assets, any of which could materially
adversely affect the Company's operating results and/or the price of the
Company's Common Stock. Acquisitions entail numerous risks, including
difficulties in the assimilation of acquired operations, technologies and
products, diversion of management's attention to other business concerns, risks
of entering markets in which the Company has no or limited prior experience and
potential loss of key employees of acquired organizations. No assurance can be
given as to the ability of the Company to successfully integrate any
businesses, products, technologies or personnel that might be acquired in the
future, and the failure of the Company to do so could have a material adverse
effect on the business, operating results and financial condition of the
Company.
DEPENDENCE ON LICENSED TECHNOLOGY
Vantive licenses technology on a non-exclusive basis from several
businesses for use with its products and anticipates that it will continue to
do so in the future. The inability of the Company to continue to license these
products or to license other necessary products for use with its products or
substantial increases in royalty payments under third party licenses could have
a material adverse effect on its business, results of operations and financial
condition. In addition, the effective implementation of the Company's products
depends upon the successful operation of these licensed products in conjunction
with the Company's products, and therefore any undetected errors in such
licensed products may prevent the implementation or impair the functionality of
the Company's products, delay new product introductions and/or injure the
Company's reputation. Such problems could have a material adverse effect on
the Company's business, results of operations and financial condition.
DEPENDENCE ON PROPRIETARY TECHNOLOGY; RISKS OF INFRINGEMENT
The Company's success is heavily dependent upon proprietary
technology. The Company relies primarily on a combination of copyright,
trademark and trade secrets laws, as well as confidentiality procedures and
contractual provisions to protect its proprietary rights. There can be no
assurance that such measures will be adequate to protect the Company from
infringement of its technology. The Company presently has no patents or patent
applications pending. Despite the Company's efforts to protect its proprietary
rights, attempts may be made to copy aspects of the Company's products or to
obtain and use information that the Company regards as proprietary. In
particular, as the Company provides its licensees with access to the data model
and other proprietary information underlying the Company's licensed
applications, there can be no assurance that licensees or others will not
develop products which infringe the Company's proprietary rights. Policing
unauthorized use of the Company's products is difficult, and while the Company
is unable to determine the extent to which piracy of its software products
exists, software piracy can be expected to be a persistent problem. In
addition, the laws of some foreign countries do not protect the Company's
proprietary rights to as great an extent as do the laws of the United States.
There can be no assurance that the Company's means of protecting its
proprietary rights will be adequate or that the Company's competitors will not
independently develop similar technology. The Company is not aware that any of
its products infringe the proprietary rights of third parties, although the
Company has in the past, and may in the future, receive communications alleging
possible infringement of third party intellectual property rights.
9
<PAGE> 11
The Company expects that software product developers will increasingly be
subject to infringement claims as the number of products and competitors in the
Company's target markets grows and the functionality of products in such
markets overlaps. Any such claims, with or without merit, could be
time-consuming, result in costly litigation, cause product shipment delays or
require the Company to enter into royalty or licensing agreements. Such
royalty or licensing agreements, if required, may not be available on terms
acceptable to the Company or at all, which could have a material adverse effect
upon the Company's business, results of operations and financial condition.
PRODUCT LIABILITY
The Company's license agreements with its customers typically contain
provisions intended to limit the Company's exposure to potential product
liability claims. It is possible that the limitation of liability provisions
contained in the Company's agreements may not be effective. Although the
Company has not experienced any product liability claims to date, the sale and
support of products by the Company and the incorporation of products from other
businesses may entail the risk of such claims. A successful product liability
action brought against the Company could have a material adverse effect upon
the Company's business, results of operations and financial condition.
ANTI-TAKEOVER EFFECTS OF RESTATED CERTIFICATE OF INCORPORATION, BYLAWS AND
DELAWARE LAW
Certain provisions of the Company's Restated Certificate of
Incorporation and Bylaws and of Delaware law could discourage potential
acquisition proposals and could delay or prevent a change control of the
Company. Such provisions could diminish the opportunities for a stockholder to
participate in tender offers, including tender offers at a price above the then
current market value of the Common Stock. Such provisions may also inhibit
increase in the market price of the Common Stock that could result from
takeover attempts. In addition, the Restated Certificate of Incorporation
authorizes 2,000,000 shares of undesignated preferred stock. The Board of
Directors of the Company, without further stockholder approval, may issue this
preferred stock with such terms as the Board of Directors may determine, which
could have the effect of delaying or preventing a change in control of the
Company. The issuance of preferred stock could also adversely affect the
voting power of the holders of Common Stock, including the loss of voting
control. Such preferred Stock could be utilized to implement, without
stockholder approval, a stockholders' right plan that could be triggered by
certain change in control transactions, which could delay or prevent a change
in control of the Company or could impede a merger, consolidation, takeover or
other business Combination involving the Company, or discourage a potential
acquiror from making a tender offer or otherwise attempting to obtain control
of the Company. The Company's Bylaws and indemnity agreements provide that the
Company will indemnify officers and directors against losses that they may
incur in legal proceedings resulting from their service to the Company. In
addition, the Restated Certificate of Incorporation and Bylaws eliminate the
right of stockholders to take action by written consent. Moreover, Section 203
of the Delaware General Corporation Law restricts certain business combinations
with "interested stockholders" as defined by that statute. The provisions of
the Restated Certificate of Incorporation and Bylaws and of Delaware law are
intended to encourage potential acquirers to negotiate with the Company and
allow the Board of Directors the opportunity to consider alternative proposals
in the interest of maximizing stockholder value. However, such provisions may
also have the effect of discouraging acquisition proposals or delaying or
preventing a change in control of the Company, which in turn may have an
adverse effect on the market price of the Company's Common Stock.
POSSIBLE VOLATILITY COMMON STOCK PRICE
Future announcements concerning the Company or its competitors,
quarterly variations in operating results, announcements of technological
innovations, the introduction of new products or changes in product pricing
policies by the Company or its competitors, proprietary rights or other
litigation, changes in earnings estimates by analysts or other factors could
cause the market price of the Common Stock to fluctuate substantially,
particularly on a quarterly basis. In addition, stock prices for many
technology companies fluctuate widely for reasons which may be unrelated to
operating results of such companies. These fluctuations, as well as general
economic, market and 'political conditions such as recessions or military
conflicts, may materially and adversely affect the market price of the
Company's Common Stock. In the past, following periods of volatility in the
market price of a company's securities, securities class action litigation has
often been instituted against such companies.
10
<PAGE> 12
Such litigation could result in substantial costs and a diversion of
management's attention and resources, which could have a material adverse
effect on the Company's business, results of operations and financial
condition.
11
<PAGE> 13
SELLING STOCKHOLDERS
The Selling Stockholders hold Shares which were issued by the Company
in the ICC Merger or upon exercise of Options assumed by the Company pursuant
to the ICC Merger. The Options were originally granted by ICC pursuant to
ICC's Stock Option Plan.
The table below lists the Selling Stockholders, the number of shares
of Vantive Common Stock which each owned as of August 26, 1997, the number of
Shares subject to sale pursuant to this Registration Statement, and the number
of the shares of Vantive Common Stock which each would own assuming that such
number of Shares were offered and assuming the sale of all such Shares
permitted to be sold.
<TABLE>
<CAPTION>
Shares Owned
Shares Owned Shares To After Offering
Selling Stockholder(1) Before Offering Be Offered Such Shares
---------------------- --------------- ---------- --------------
<S> <C> <C> <C>
Amy Guy 454 454 0
Brian Chesebro 634 634 0
Brian Gemborys 74 74 0
Brian McLaughlin 4,973 4,973 0
David Heslin 951 951 0
David Jodoin 246,333 246,333 0
Doug Drane 24,567 24,567 0
Frank Caruso 2,882 2,882 0
George Schwenk 4,332 4,332 0
Gladys Liles 3,065 3,065 0
Helen Gilman 11,543 11,543 0
Janice Doran 2,494 2,494 0
Jim Critides 4,874 4,874 0
Jim Fontaine 756 756 0
Jim Kendall 10,295 10,295 0
Jim St. Jean 16,559 16,559 0
John Grozier 6,991 6,991 0
Jime Thatcher 51 51 0
John Grubb 2,852 2,852 0
John D. Rogers 245 245 0
Joseph and Carol Jodoin 22,967 22,967 0
Joshua Rizack 9,747 9,747 0
Linda Shattuck 416 416 0
Marc Gilman 154,342 154,342 0
Michelle Defeo 654 654 0
Mort Goulder 61,042 61,042 0
Phil St. Germain 10,917 10,917 0
Richard Donovan 1,411 1,411 0
Richard Kates 9,747 9,747 0
Robert Montminy 736 736 0
Sharon Burman 675 675 0
Sheila Martin 411 411 0
Stewart Hall 3,066 3,066 0
Taylor Soper 4,187 4,187 0
Tim Flanders 2,923 2,923 0
Tom Goliash 22,432 22,432 0
William Giarusso 4,973 4,973 0
------- ------- -------
Totals 655,571 655,571 0
======= ======= =======
</TABLE>
_________________________
(1) The persons named in the table have sole voting and investment power with
respect to all shares of Vantive Common Stock shown as beneficially owned by
them, subject to community property laws, where applicable.
12
<PAGE> 14
PLAN OF DISTRIBUTION
Any or all of the Shares may be sold from time to time to purchasers
directly by any of the Selling Stockholders. Alternatively, the Selling
Stockholders may from time to time offer the Shares through underwriters,
dealers or agents who may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Stockholders and/or the
purchasers of Shares for whom they may act as agents. The Selling Stockholders
and any such underwriters, dealers or agents that participate in the
distribution of Shares may be deemed to be underwriters, and any profit on the
sale of the Shares by them and any discounts, commissions or concessions
received by them may be deemed to be underwriting discounts and commissions
under the Securities Act. The Shares may be sold from time to time in one or
more transactions at a fixed offering price, which may be changed, or at
varying prices determined at the time of sale or at negotiated prices. The
Selling Stockholders may from time to time enter into hedging transactions with
respect to the Shares.
At the time a particular offer of Shares is made, to the extent
required, a supplement to this Prospectus will be distributed which will
identify and set forth the aggregate amount of Shares being offered and the
terms of the offering, including the name or names of any underwriters, dealers
or agents, the purchase price paid by any underwriter for Shares purchased from
the Selling Stockholders, any discounts, commissions and other items
constituting compensation from the Selling Stockholders and/or the Company, and
any discounts, commissions or concessions allowed or reallowed or paid to
dealers, including the proposed selling price to the public. The Company will
not receive any of the proceeds from the sale by the Selling Stockholders of
the Shares offered hereby.
Under applicable rules and regulations under the Exchange Act, any
person engaged in a distribution of the Shares may not simultaneously engage in
market making activities with respect to the Shares for a period of nine
business days prior to the commencement of such distribution. In addition, and
without limiting the foregoing, the Selling Stockholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder including, without limitation, Rules 10b-2, 10b-6 and 10b-7, which
provisions may limit the timing of purchases and sales of the Shares by the
Selling Stockholders.
In order to comply with certain states' securities laws, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In certain states the Shares may
not be sold unless the Shares have been registered or qualified for sale in
such state, or unless an exemption from registration or qualification is
available and is obtained.
The Company has agreed to indemnify in certain circumstances the
Selling Stockholders and the broker dealers who may be deemed to be the
underwriters (if any) of the securities covered by this Registration Statement
against certain liabilities, including liabilities under the Securities Act.
The Selling Stockholders have agreed to indemnify in certain circumstances the
Company against certain liabilities, including liabilities under the Securities
Act.
The Company has agreed to use its best efforts to keep the
Registration Statement, of which this Prospectus constitutes a part, effective
until August 26, 1998, provided the Company is then making available "current
public information" within the meaning of Rule 144(c) under the Securities Act
(and if such information is not then being made available by the Company, then
until the first date thereafter that the Company is making such information
available).
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares
by the Selling Stockholders.
LEGAL MATTERS
The legality of the Shares is being passed upon by Gray Cary Ware &
Freidenrich, A Professional Corporation, Palo Alto, California.
13
<PAGE> 15
- --------------------------------------------------------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING DESCRIBED HEREIN,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, ANY SELLING SHAREHOLDER OR BY
ANY UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES OTHER THAN THE REGISTERED
SECURITIES TO WHICH IT RELATES, OR AN OFFER TO SELL, OR A SOLICITATION OF AN
OFFER TO BUY, IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information .............................................. 2
Incorporation of Certain
Documents by Reference ............................................ 2
The Company ........................................................ 3
Risk Factors ....................................................... 4
Selling Stockholders ............................................... 12
Plan of Distribution ............................................... 13
Use of Proceeds .................................................... 13
Legal Matters ...................................................... 13
</TABLE>
655,571 SHARES
THE VANTIVE CORPORATION
COMMON STOCK
---------------
PROSPECTUS
---------------
September ____, 1997
- --------------------------------------------------------------------------------
14
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with
the sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimates
except the Securities and Exchange Commission registration and listing and
filing fees.
<TABLE>
<CAPTION>
To be Paid
By The
Registrant
----------
<S> <C>
Securities and Exchange Commission registration fee .................. $ 4,992
Nasdaq National Market Additional Listing Fee ........................ $13,111
Accounting fees and expenses ......................................... $ 3,000
Legal fees and expenses .............................................. $15,000
Miscellaneous expenses ............................................... $ 3,897
=======
Total................................................................. $40,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("Delaware Law")
permits indemnification of officers, directors, and other corporate agents under
certain circumstances and subject to certain limitations. The Registrant's
Certificate of Incorporation (Exhibit 3.1) and Bylaws (Exhibit 3.3) provide that
the Registrant shall indemnify its directors, officers, employees, and agents to
the full extent permitted by Delaware Law, including in circumstances in which
indemnification is otherwise discretionary under Delaware law. In addition, the
Registrant has entered into separate indemnification agreements (Exhibit 10.1)
with its directors and officers which would require the Registrant, among other
things, to indemnify them against certain liabilities which may arise by reason
of their status or service (other than liabilities arising from willful
misconduct of a culpable nature) and to maintain directors' and officers'
liability insurance, if available on reasonable terms. The Registrant currently
has directors' and officers' liability insurance with up to $5.0 million
coverage per occurrence.
These indemnification provisions may be sufficiently broad to permit
indemnification of the Registrant's officers and directors for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act
of 1933, as amended (the "Securities Act").
The Declaration of Registration Rights (Exhibit 10.17) provides for
indemnification by the Selling Stockholders of the Registrant and its officers
and directors for certain liabilities arising under the Securities Act, or
otherwise.
ITEM 16. EXHIBITS
Exhibit No. Description of Document
- ----------------- --------------------------------------------------------
*3.1 Form of Agreement and Plan of Merger between The Vantive
Corporation, a California corporation, and The Vantive
Corporation, a Delaware corporation.
*3.2 Bylaws.
5.1 Opinion and Consent of Gray Cary Ware & Freidenrich, A
Professional Corporation.
*10.1 Form of Indemnity Agreement for officers and directors.
15
<PAGE> 17
*10.2 1991 Stock Option Plan, as amended.
*10.3 1995 Outside Directors Stock Option Plan.
*10.4 1995 Employee Stock Purchase Plan.
*10.5 Offer Letter dated May 21, 1993 between the Company and John
R. Luongo.
*10.6 Offer Letter dated April 6, 1995 between the Company and
John M. Jack.
+10.7 Value Added Reseller License Agreement dated October 5, 1993
by and between Inference Corporation and the Company.
+10.8 Basicscript License Agreement dated October 4, 1994 by and
between Henneberry Hill Technologies Corporation doing
business as Summit Software Company and the Company.
+10.9 International VAR Agreement dated March 26, 1992 between
Oracle Corporation and the Company, as amended.
*10.9.1 International VAR Agreement dated June 28, 1996 between
Oracle Corporation and the Company as amended.
+10.10 Value Added Remarketer Agreement dated December 20, 1991
between Sybase, Inc. and the Company, as amended.
*10.11 Security and Loan Agreement dated May 12, 1995 between the
Company and Imperial Bank.
+10.12 Application Bridge API VAR License Agreement dated January
22, 1993 between the Company and Prospect Software, Inc.
+10.13 Compensation Letter dated May 10, 1995 between the Company
and John R. Luongo.
10.14 Not used.
*10.15 Lease Agreement dated January 13, 1995 between John
Arrillaga, Trustee, or his Successor Trustee, UTA dated July
20, 1977 (John Arrillaga Separate Property Trust) as
amended, and Richard T. Peery Separate Property Trust) as
amended, and the Company.
#10.16 Lease Agreement dated September 4, 1996 between John
Arrillaga, Trustee, or his Successor Trustee, UTA dated July
20, 1977 (Arrillaga Family Trust) as amended, and Richard T.
Peery, Trustee, or his Successor Trustee, UTA dated July 20,
1977 (Richard T. Peery Separate Property Trust) as amended,
and the Company.
10.17 Declaration of Registration Rights made as of August 13,
1997 by the Company for the benefit of the holders of common
stock of Innovative Computer Concepts, Inc.
23.1 Consent of Arthur Anderson LLP, Independent Auditors
23.2 Consent of Gray Cary Ware & Freidenrich, A Professional
Corporation. Reference is made to Exhibit 5.1
24.1 Power of Attorney (see signature page)
16
<PAGE> 18
27.1# Financial Data Schedule (EDGAR Format only).
* Incorporated by reference from the Company's Registration
Statement (No. 33-94244), declared effective on August 14,
1995.
+ Confidential Treatment has been granted for portions of this
exhibit.
# Incorporated by reference from the Company's Report on Form
10-K for the Fiscal Year ended December 31, 1996.
17
<PAGE> 19
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended (the
"Securities Act"), each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to 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.
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
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus 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.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) of the Securities Act of 1933,
if, in the aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
18
<PAGE> 20
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Exchange Act of 1934, that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
19
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Palo Alto,
State of California, on September 22, 1997.
THE VANTIVE CORPORATION
By: /s/ John R. Luongo
----------------------------------------
John R. Luongo
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John Luongo, Kathleen A. Murphy
and Michael Loo, and each of them, their true and lawful attorneys and agents,
with full power of substitution, each with power to act alone, to sign and
execute on behalf of the undersigned any amendment or amendments to this
Registration Statement on Form S-3 (including post-effective amendments) and to
perform any acts necessary in order to file such amendments, and each of the
undersigned does hereby ratify and confirm all that said attorneys and agents,
or their or his substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ John R. Luongo President, Chief Executive September 22, 1997
- ----------------------------------------- Officer and Director
John R. Luongo (Principal Executive Officer)
Vice President, Finance and September 22, 1997
/s/ Kathleen A. Murphy Administration, Chief Financial
- ----------------------------------------- Officer and Secretary (Principal
Kathleen A. Murphy Financial Officer)
/s/ Michael M. Loo Vice President, Finance September 22, 1997
- ----------------------------------------- (Principal Accounting Officer)
Michael M. Loo
/s/ Roger J. Sippl Chairman of the Board of September 22, 1997
- ----------------------------------------- Directors
Roger J. Sippl
/s/ Aneel Bhusri Director September 22, 1997
- -----------------------------------------
Aneel Bhusri
/s/ William H. Davidow Director September 22, 1997
- -----------------------------------------
William H. Davidow
/s/ Kevin G. Hall Director September 22, 1997
- -----------------------------------------
Kevin G. Hall
/s/ Raymond L. Ocampo Jr. Director September 22, 1997
- -----------------------------------------
Raymond L. Ocampo Jr.
/s/ Peter A. Roshko Director September 22, 1997
- -----------------------------------------
Peter A. Roshko
</TABLE>
20
<PAGE> 22
EXHIBIT INDEX
Exhibit No. Description of Document
----------- -----------------------
*3.1 Form of Agreement and Plan of Merger between The Vantive
Corporation, a California corporation, and The Vantive
Corporation, a Delaware corporation.
*3.2 Bylaws.
5.1 Opinion and Consent of Gray Cary Ware & Freidenrich, A
Professional Corporation.
*10.1 Form of Indemnity Agreement for officers and directors.
*10.2 1991 Stock Option Plan, as amended.
*10.3 1995 Outside Directors Stock Option Plan.
*10.4 1995 Employee Stock Purchase Plan.
*10.5 Offer Letter dated May 21, 1993 between the Company and John
R. Luongo.
*10.6 Offer Letter dated April 6, 1995 between the Company and
John M. Jack.
+10.7 Value Added Reseller License Agreement dated October 5, 1993
by and between Inference Corporation and the Company.
+10.8 Basicscript License Agreement dated October 4, 1994 by and
between Henneberry Hill Technologies Corporation doing
business as Summit Software Company and the Company.
+10.9 International VAR Agreement dated March 26, 1992 between
Oracle Corporation and the Company, as amended.
*10.9.1 International VAR Agreement dated June 28, 1996 between
Oracle Corporation and the Company as amended.
+10.10 Value Added Remarketer Agreement dated December 20, 1991
between Sybase, Inc. and the Company, as amended.
*10.11 Security and Loan Agreement dated May 12, 1995 between the
Company and Imperial Bank.
+10.12 Application Bridge API VAR License Agreement dated January
22, 1993 between the Company and Prospect Software, Inc.
+10.13 Compensation Letter dated May 10, 1995 between the Company
and John R. Luongo.
10.14 Not used.
*10.15 Lease Agreement dated January 13, 1995 between John
Arrillaga, Trustee, or his Successor Trustee, UTA dated July
20, 1977 (John Arrillaga Separate Property Trust) as
amended, and Richard T. Peery Separate Property Trust) as
amended, and the Company.
#10.16 Lease Agreement dated September 4, 1996 between John
Arrillaga, Trustee, or his Successor Trustee, UTA dated July
20, 1977 (Arrillaga Family Trust) as amended, and Richard T.
Peery, Trustee, or his Successor Trustee, UTA dated July 20,
1977 (Richard T. Peery Separate Property Trust) as amended,
and the Company.
10.17 Declaration of Registration Rights made as of August 13,
1997 by the Company for the benefit of the holders of
Common Stock of Innovative Computer Concepts, Inc.
23.1 Consent of Arthur Anderson LLP, Independent Auditors
23.2 Consent of Gray Cary Ware & Freidenrich, A Professional
Corporation. Reference is made to Exhibit 5.1
24.1 Power of Attorney (see signature page)
27.1# Financial Data Schedule (EDGAR Format only).
* Incorporated by reference from the Company's Registration
Statement (No. 33-94244), declared effective on August 14,
1995.
+ Confidential Treatment has been granted for portions of this
exhibit.
# Incorporated by reference from the Company's Report on Form
10-K for the Fiscal Year ended December 31, 1996.
<PAGE> 1
Exhibit 5.1
September 26, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: THE VANTIVE CORPORATION
REGISTRATION STATEMENT ON FORM S-3
----------------------------------
Ladies and Gentlemen:
As legal counsel for The Vantive Corporation, a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the preparation
and filing of a registration statement on Form S-3 (the "Registration
Statement") relating to the registration under the Securities Act of 1933, as
amended, of 655,571 shares of Common Stock, par value $0.001 per share (the
"Common Stock") issued to the selling stockholders by the Company in connection
with that certain Agreement and Plan of Merger dated August 13, 1997 by and
among the Company, Igloo Acquisition Corporation, a Delaware corporation, and
Innovative Computer Concepts, Inc., a Delaware corporation.
We have examined such instruments, documents and records as we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
to the originals of all documents submitted to us as copies.
Based on such examination, we are of the opinion that the 655,571 shares
of Common Stock of the Company being registered pursuant to the Registration
Statement and to be sold by the selling stockholders are duly authorized shares
of Common Stock and are validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
This opinion is to be used only in connection with the issuance of the
Common Stock while the Registration Statement is in effect.
Respectfully submitted,
/s/ Gary Cary Ware & Freidenrich
--------------------------------
GARY CARY WARE & FREIDENRICH
A Professional Corporation
<PAGE> 1
Exhibit 10.17
DECLARATION OF REGISTRATION RIGHTS
This Declaration of Registration Rights ("Declaration") is made as of
August 13, 1997 by The Vantive Corporation, a Delaware corporation ("Buyer")
for the benefit of the holders of common stock ("Holders") of Innovative
Computer Concepts, Inc., a Delaware corporation ("Target"), who are acquiring
shares of Common Stock of Buyer pursuant to that certain Agreement and Plan of
Merger of even date herewith (the "Merger Agreement"), among Buyer, Target and
Igloo Acquisition Corporation, a Delaware corporation and a wholly-owned
subsidiary of Buyer ("Sub").
1. Definitions. As used in this Declaration:
(a) "Form S-3" means such form under the Securities Act as
in effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the Commission which similarly permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the Commission.
(b) "Employee Holder" means a Holder who was employed by Target
immediately prior to the Effective Time of the Merger Agreement.
(c) "Non-Employee Holder" means a Holder who is not an Employee
Holder.
(d) "Registrable Shares" means (i) for each Non-Employee Holder,
the shares of Buyer Common Stock issued to such Holder pursuant to the Merger
Agreement, together with all other shares of Buyer Common Stock issued in
respect thereof (by way of stock split, dividend or otherwise), and (ii) for
each Employee Holder, twenty-five percent (25.0%) (rounded up to the nearest
whole share) of the shares of Buyer Common Stock issued to such Holder pursuant
to the Merger Agreement, together with all other shares of Buyer Common Stock
issued in respect thereof (by way of stock split, dividend or otherwise).
Registrable Shares shall not include any shares of Buyer Common Stock
transferred by a Holder pursuant to Section 6 hereof to any person who does not
agree to be bound by the terms of this Declaration.
(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Act" means the Securities Act of 1933, as amended.
(g) "Holder" means: (i) a holder of Target Common Stock to whom
Registrable Shares are issued pursuant to the Merger Agreement, for as long as
such holder continues to hold such shares, or (ii) a transferee of Registrable
Shares by a Holder, to whom registration rights under this Declaration are
assigned pursuant to Section 6 of this Declaration.
<PAGE> 2
(h) "NASD" means the National Association of Securities
Dealers, Inc.
Capitalized terms not otherwise defined herein have the meanings given
to them in the Merger Agreement.
2. Registration Rights.
(a) On or before thirty (30) days after the Effective Time, the
Company will file a registration statement on Form S-3 to permit the sale and
distribution of all of the Holders' Registrable Shares and thereafter shall use
its best efforts to secure the effectiveness of such registration statement at
the earliest practicable date.
(b) Each Holder shall provide all information to Buyer as may
be required to be included in such registration statement on behalf of such
Holder in order to permit Buyer to comply with all applicable requirements of
the SEC and to obtain any desired acceleration of the effective date of such
registration statement. The provision of such information by a Holder is a
condition precedent to the obligations of Buyer pursuant to this Declaration
with respect to the Registrable Shares held by such Holder.
3. Obligations of Buyer.
(a) Subject in each case to the limitations of Section 2 above,
Buyer shall (i) prepare and file with the SEC a registration statement in
accordance with Section 2 hereof with respect to the Registrable Shares and
shall use all reasonable efforts to cause such registration statement to become
effective as promptly as practicable after filing and to keep such registration
statement effective until the Termination Date (as hereinafter defined); (ii)
prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may
be necessary, and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of all securities proposed to be
registered in each such registration statement until the Termination Date;
(iii) furnish to each Holder such number of copies of any prospectus (including
any preliminary prospectus and any amended or supplemented prospectus) in
conformity with the requirements of the Securities Act, and such other
documents, as each Holder may reasonably request in order to effect the
offering and sale of the Registrable Shares to be offered and sold, but only
while Buyer shall be required under the provisions hereof to cause the
registration statement to remain current; and (iv) use reasonable efforts to
register or qualify the Registrable Shares covered by such registration
statement under the securities or blue sky laws of such jurisdictions as each
Holder shall reasonably request (provided that Buyer shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such jurisdiction where it
has not been qualified). For purposes of this Section 3(a), "Termination Date"
means the date one (1) year following the Effective Time, provided that Buyer
is then making available "current public information" within the meaning of
Rule 144(c) under the Securities Act (and if such information is not then being
made available by Buyer, the
<PAGE> 3
Termination Date shall mean the first date thereafter that Buyer is making such
information available.
(b) Buyer shall notify each Holder, (i) when a prospectus or any
prospectus supplement or post-effective amendment has been filed, and, with
respect to the registration statement or any post-effective amendment, when the
same has become effective; (ii) of any request by the SEC or any other federal
or state governmental authority during the period of effectiveness of the
registration statement for amendments or supplements to the registration
statement or related prospectus or for additional information relating to the
registration statement, (iii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the effectiveness of
the registration statement or the initiation of any proceedings for that
purpose; (iv) of the receipt by Buyer of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, or (v) of the happening of any event which
makes any statement made in the registration statement or related prospectus of
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or which requires the making of any changes in
the registration statement or prospectus so that, in the case of the
registration statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Buyer may, upon
the happening of any event of the kind described in clauses (ii), (iii), (iv) or
(v) hereof, suspend use of the prospectus on written notice to each Holder, in
which case each Holder shall discontinue disposition of Registrable Shares
covered by the registration statement or prospectus until copies of a
supplemented or amended prospectus are distributed to the Holders or until the
Holders are advised in writing by the Company that the use of the applicable
prospectus may be resumed. Buyer shall use its reasonable efforts to ensure that
the use of the prospectus may be resumed as soon as practicable. Buyer shall use
reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of the registration statement, or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the securities for
sale in any jurisdiction, at the earliest practicable moment. Buyer shall, upon
the occurrence of any event contemplated by clause (iv) or (v) above, prepare a
supplement or post-effective amendment to the registration statement or a
supplement to the related prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Shares being sold thereunder, such
prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
<PAGE> 4
4. EXPENSES. Buyer shall pay all of the out-of-pocket expenses
incurred, other than underwriting discounts and commissions, in connection with
any registration of Registrable Shares pursuant to this Declaration, including,
without limitation, all SEC, NASD and blue sky registration and filing fees,
printing expenses, transfer agents' and registrars' fees, and the reasonable
fees and disbursements of Buyer's outside counsel and independent accountants
and a single counsel for all of the Holders.
5. INDEMNIFICATION. In the event of any offering registered pursuant
to this Declaration:
(a) Buyer will indemnify each Holder, each underwriter of such
Registrable Shares, and each person controlling a Holder or such underwriter,
against all claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, preliminary prospectus, prospectus, or any amendment or
supplement thereto, incident to any offering registered pursuant to this
Declaration, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they are made, not
misleading, or any violation by Buyer of any rule or regulation promulgated
under the Securities Act, or state securities laws applicable to Buyer in
connection with any such registration, and subject to Section 5(c), will
reimburse each such Holder, and each person controlling such Holder, for any
legal and any other out-of-pocket expenses reasonably incurred in connection
with investigating, preparing or defending any such claim, loss, damage,
liability or action, provided that Buyer will not be liable to any Holder or
the controlling person of such Holder in any such case to the extent that any
such claim, loss, damage, or liability arises out of or is based in any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to Buyer by such
Holder or controlling person and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Shares held by such Holder are
included in the securities as to which such registration qualification or
compliance is being effected, indemnify Buyer, each of its directors and
officers and its legal counsel and independent accountants, each underwriter, if
any, of Buyer's securities covered by such a registration statement, each
underwriter, if any, of Buyer's securities covered by such a registration
statement, each person who controls Buyer or such underwriter within the
meaning of Section 15 of the Securities Act, and each other such Holder, and
such Holder's legal counsel and independent accountants, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse Buyer, such Holders,
such directors, officers, legal counsel, independent accountants, underwriters
or control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending
<PAGE> 5
any such claim loss, damage, liability or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to Buyer by such Holder and stated
to be specifically for use therein; provided, however, that the obligations of
such Holders hereunder shall be several and not joint and shall be limited to an
amount equal to the respective net proceeds before expenses and commissions to
each such Holder of Registrable Shares sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party receives written notice of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such Indemnified Party's expense, and provided further that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Declaration,
except to the extent, but only to the extent, that the Indemnifying Party's
ability to defend against such claim or litigation is impaired as a result of
such failure to give notice. Notwithstanding the foregoing sentence, the
Indemnified Party may retain its own counsel to conduct the defense of any such
claim or litigation, and shall be entitled to be reimbursed by the Indemnifying
Party or expenses incurred by the Indemnified Party in defense of such claim or
litigation, in the event that the Indemnifying Party does not assume the
defense of such claim or litigation within sixty days after the Indemnifying
Party receives notice thereof from the Indemnified Party. Further, an
Indemnifying Party shall be liable for amounts paid in settlement of any such
claim or litigation only if the Indemnifying Party consents in writing to such
settlement (which consent shall not be reasonably withheld). No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party a release from
all liability in respect to such claim or litigation.
(d) If the indemnification or reimbursement sought pursuant to this
Section 5 is judicially determined by a court of competent jurisdiction to be
unavailable, then the Company on the one hand and the Holders on the other hand
shall contribute to the claims, losses, damages, liabilities and expenses for
which such indemnification or reimbursement is held unavailable (i) in such
proportion as is appropriate to reflect the relative benefits to the Buyer, on
the one hand, and the Holders on the other hand, in connection with the
transactions to which indemnification or reimbursement relates, or (ii) if the
allocation provided in clause (i) above is not permitted by applicable law, in
such proportion as appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative faults
<PAGE> 6
of the Buyer on the one hand and the Holders on the other hand, as well as any
other equitable considerations; provided, however, that in no event shall the
amount to be so contributed by each Holder exceed the net proceeds before
expenses and commissions of that Holder of Registrable Shares sold as
contemplated herein.
(e) The obligations of Buyer and each Holder under this
Section 5 shall survive the completion of any offering of stock in a
registration statement under this Declaration and otherwise.
6. Assignment of Registration Rights. The rights to cause Buyer to
register Registrable Securities pursuant to this Declaration may be assigned by
a Holder to a transferee of Registrable Shares only if: (a) Buyer is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee and the Registrable Securities with respect to
which such registration rights are being assigned and a copy of a duly executed
written instrument in form reasonably satisfactory to Buyer pursuant to which
such transferee assumes all of the obligations and liabilities of its transferor
hereunder and agrees itself to be bound hereby; (b) immediately following such
transfer, the disposition of such Registrable Securities by the transferee is
restricted under the Securities Act; and (c) no less than 5,000 shares of Buyer
Common Stock (adjusted for stock splits, dividends, combinations of the like)
have been transferred to transferee.
7. Amendment of Registration Rights. The Holder of a majority of
the Registrable Shares then outstanding may, with the consent of Buyer, amend
the registration rights granted hereunder.
8. Obligations of Holders. By exercising any rights hereunder,
each Holder shall be deemed to assume all obligations of a Holder hereunder as
though such Holder were a signatory hereto. Buyer may require Holders to
execute an instrument whereby such Holders expressly assume all obligations of
Holders hereunder as a condition precedent to any obligations of Buyer
hereunder.
9. Merger. Buyer shall not, directly or indirectly, enter into any
merger, consolidation or reorganization in which Buyer is not the surviving
corporation unless the proposed surviving corporation shall, prior to such
merger, consolidation or reorganization, agree in writing to assume the
obligations of Buyer under this Declaration, and for that purpose, references
hereunder to Registrable Securities shall be deemed to be references to the
securities which the Holders would be entitled to receive in exchange for
Registrable Securities in such transaction; provided, however, that the
provisions of this Section 9 shall not apply in the event of any merger,
consolidation or reorganization in which Buyer is not the surviving corporation
if all Holders are entitled to receive in exchange for their Registrable Shares
consideration consisting solely of (i) cash, (ii) securities of the acquiring
corporation which may be immediately sold to the public without registration
under the Securities Act, or (iii) securities of the acquiring corporation
which the acquiring corporation has agreed to register for resale to the public
pursuant to the Securities Act within 90 days of completion of the
transaction.
<PAGE> 7
IN WITNESS WHEREOF, the Buyer has executed this Declaration as of the
date first written above.
BUYER:
The Vantive Corporation
By_____________________
Its____________________
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 20, 1997
included in The Vantive Corporation's Form 10-K for the year ended December 31,
1996.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Jose, California
September 26, 1997
