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Registration No. ___________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE VANTIVE CORPORATION
----------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 77-0266662
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
2455 Augustine Drive
Santa Clara, CA 95054
-----------------------
(Address of principal executive offices) (Zip code)
THE VANTIVE CORPORATION
AMENDED AND RESTATED 1991 STOCK OPTION PLAN AND
INDIVIDUAL OPTION AGREEMENTS GRANTED UNDER THE
INNOVATIVE COMPUTER CONCEPTS, INC. 1995 STOCK INCENTIVE PLAN AND ASSUMED BY
THE VANTIVE CORPORATION
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(Full title of the plan)
David Schellhase
Vice President and General Counsel
The Vantive Corporation
2455 Augustine Drive
Santa Clara, CA 95054
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 408/982-5700
This registration statement, including all exhibits and attachments, contains 16
pages. The exhibit index may be found on page 8 of the consecutively numbered
pages of the registration statement.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
======================================================================================================================
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered(1) registered share(2) price(2) registration fee
- ------------------------------- ---------------------- --------------------- --------------------- -------------------
<S> <C> <C> <C> <C>
Amended and Restated 1991
Stock Option Plan
Common Stock 161,133 $29.4011 $ 4,737,487.45
par value $0.001 1,103,938 $27.125 $29,944,318.25
Assumed Options
Common Stock 32,373 $0.09 $2,913.57
par value $0.001
TOTALS 1,297,444 $34,684,719.27 $10,510.52
======================================================================================================================
</TABLE>
(1) The securities to be registered include options to acquire such Common
Stock.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised
options under The Vantive Corporation Amended and Restated 1991 Stock
Option Plan and the individual option agreements granted under the
Innovative Computer Concepts, Inc. 1995 Stock Incentive Plan and assumed by
The Vantive Corporation, the prices are computed on the basis of the
weighted average exercise prices. As to the remaining shares under The
Vantive Corporation Amended and Restated 1991 Stock Option Plan, the price
is based upon the average of the high and low prices of the Common Stock on
September 19, 1997 as reported on the National Association of Securities
Dealers Automated Quotations System.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Vantive Corporation (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended December 31, 1996, as filed with the Commission.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
The validity of the shares of Common Stock to be offered hereunder has
been passed upon for the Company by Gray Cary Ware & Freidenrich, A Professional
Corporation ("GCWF"). As of September 15, 1997, certain attorneys of GCWF owned
28,519 shares of the Common Stock of the Company.
Item 6. Indemnification of Directors and Officers
Delaware law authorizes corporations to eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach or alleged breach of the directors' "duty of care." While the
relevant statute does not change the directors' duty of care, it enables
corporations to limit available relief to equitable remedies such as injunction
or rescission. The statute has no effect on directors' duty of loyalty, acts or
omissions not in good faith or
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involving intentional misconduct or knowing violations of law, illegal
payment of dividends and approval of any transaction from which a director
derives an improper personal benefit.
The Company has adopted provisions in its Certificate of Incorporation
which eliminate the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty of
care. The Bylaws of the Company provide for indemnification of its directors,
officers, employees and agents to the full extent permitted by the General
Corporation Law of the State of Delaware, the Company's state of incorporation,
including those circumstances in which indemnification would otherwise be
discretionary under Delaware Law. Section 145 of the General Corporation Law of
the State of Delaware provides for indemnification in terms sufficiently broad
to indemnify such individuals, under certain circumstances, for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act
of 1933, as amended.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
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;
(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;
provided, however, that paragraphs (a)(1)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant
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pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) Filing incorporating subsequent Exchange Act documents by reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of 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.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Santa Clara, State of California, on September
26, 1997.
The Vantive Corporation
By: /s/ Kathleen A. Murphy
--------------------------------------
Kathleen A. Murphy
Chief Financial Officer
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of The Vantive Corporation, whose signatures
appear below, hereby constitute and appoint John R. Luongo and Kathleen A.
Murphy, 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-8, and each of the undersigned does hereby ratify and
confirm all that each of said attorney and agent, 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, as amended, this registration statement has been
signed by the following persons in the capacities indicated on September 24,
1997.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ John R. Luongo President, Chief Executive Officer and Director
- ------------------------------ (Principal Executive Officer)
John R. Luongo
/s/ Kathleen A. Murphy Chief Financial Officer (Principal Financial
- ------------------------------ Officer)
Kathleen A. Murphy
/s/ Michael M. Loo Vice President, Finance (Principal Accounting
- ------------------------------ Officer)
Michael M. Loo
/s/ Roger J. Sippl Chairman of the Board and Director
- ------------------------------
Roger J. Sippl
/s/ Aneel Bhusri Director
- ------------------------------
Aneel Bhusri
/s/ William H. Davidow Director
- ------------------------------
William H. Davidow
Director
- ------------------------------
Kevin G. Hall
Director
- ------------------------------
Raymond L. Ocampo Jr.
/s/ Peter A. Roshko Director
- ------------------------------
Peter A. Roshko
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
<S> <C> <C>
Sequentially
Numbered Page
-------------
4.1 Restated Certificate of Incorporation of the Company, as filed with 9
the Secretary of State of the State of Delaware on August 18, 1995
4.2 Bylaws of the Company are incorporated by reference to Exhibit 3.2 to --
the Company's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission, declared effective on August 14,
1995 (No. 33-94244)
5 Opinion re legality 14
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of Arthur Andersen LLP 16
24 Power of Attorney (included in signature pages to this registration --
statement)
</TABLE>
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EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
THE VANTIVE CORPORATION
(Pursuant to Section 245 of General Corporation Law of the State of
Delaware)
The Vantive Corporation, a corporation organized and existing under the
General Corporation Law of the State of Delaware, which was originally
incorporated in Delaware under the name The Vantive Corporation Delaware on June
23, 1995, (the "Corporation") certifies as follows:
1. The Corporation's Restated Certificate of Incorporation was duly
adopted by the Board of Directors at a regular meeting in accordance with
Section 245 of the Corporation Law.
2. The Corporation's Restated Certificate of Incorporation only
restates and integrates and does not further amend the provisions of the
Corporation's Certificate of Incorporation as theretofore amended or
supplemented, and there is no discrepancy between those provisions and the
provisions of the Restated Certificate.
3. The Corporation's Certificate of Incorporation is restated to read
in full as follows:
FIRST: The name of the Corporation is The Vantive Corporation.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is Incorporating Services, Ltd., 15
East North Street, in the City of Dover, County of Kent.
The name of the registered agent at that address is
Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may be organized
under the General Corporation Law of Delaware.
FOURTH:
A. The total number of shares of all classes of stock which
the Corporation shall have authority to issue is Fifty-Two
Million (52,000,000) consisting of Fifty Million
(50,000,000) shares of Common Stock, par value one-tenth of
one cent ($.001) per share (the "Common Stock") and Two
Million (2,000,000) shares of Preferred Stock, par value
one-tenth of one cent ($.001) per share (the "Preferred
Stock").
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B. The Preferred Stock authorized by this Certificate of
Incorporation may be issued from time to time in series.
The Board of Directors is authorized to determine, alter or
eliminate any or all of the rights, preferences, privileges
and restrictions granted to or imposed upon any wholly
unissued series of Preferred shares, and to fix, increase
or decrease the number of shares comprising any such series
and the designation thereof, or any of them, and to provide
for the rights and terms of redemption or conversion of the
shares of any such series.
FIFTH: The following provisions are inserted for the management of
the business and the conduct of the affairs of the
Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and of its
directors and stockholders:
A. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of
Directors. In addition to the powers and authority
expressly conferred upon them by statute or by this
Certificate of Incorporation or the Bylaws of the
Corporation, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be
exercised or done by the Corporation.
B. The directors of the Corporation need not be elected by
written ballot unless the Bylaws so provide.
C. On and after the closing date of the first sale of the
Corporation's Common Stock pursuant to a firmly
underwritten registered public offering (the "IPO"), any
action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly
called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in
writing by such stockholders. Prior to such sale, unless
otherwise provided by law, any action which may otherwise
be taken at any meeting of the stockholders may be taken
without a meeting and without prior notice, if a written
consent describing such actions is signed by the holders of
outstanding shares having not less than the minimum number
of votes which would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote
thereon were present and voted.
D. Special meetings of stockholders of the Corporation may be
called only (1) by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the
time any such resolution is presented to the Board for
adoption) or (2) by the holders of not less than ten
percent (10%) of all of the shares entitled to cast votes
at the meeting.
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SIXTH:
A. The number of directors shall initially be set at seven (7)
and, thereafter, shall be fixed from time to time
exclusively by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the
time any such resolution is presented to the Board for
adoption). Subject to the rights of the holders of any
series of Preferred Stock then outstanding, a vacancy
resulting from the removal of a director by the
stockholders as provided in Article SIXTH, Section C below
may be filled at a special meeting of the stockholders held
for that purpose.
B. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created
directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of
Directors resulting from death, resignation or other cause
(other than removal from office by a vote of the
stockholders) may be filled only by a majority vote of the
directors then in office, though less than a quorum, and
directors so chosen shall hold office for a term expiring
at the next annual meeting of stockholders at which the
term of office of the class to which they have been elected
expires, and until their respective successors are elected,
except in the case of the death, resignation, or removal of
any director. No decrease in the number of directors
constituting the Board of Directors shall shorten the term
of any incumbent director.
C. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any directors, or the
entire Board of Directors, may be removed from office at
any time, with or without cause, but only by the
affirmative vote of the holders of at least a majority of
the voting power of all of the then outstanding shares of
capital stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single
class. Vacancies in the Board of Directors resulting from
such removal may be filled by a majority of the directors
then in office, though less than a quorum, or by the
stockholders as provided in Article SIXTH, Section A above.
Directors so chosen shall hold office for a term expiring
at the next annual meeting of stockholders at which the
term of office of the class to which they have been elected
expires, and until their respective successors are elected,
except in the case of the death, resignation, or removal of
any director.
SEVENTH: The Board of Directors is expressly empowered to adopt,
amend or repeal Bylaws of the Corporation. Any adoption,
amendment or repeal of Bylaws of the Corporation by the
Board of Directors shall require the approval of a majority
of the total number of authorized directors (whether or not
there exist any vacancies in previously authorized
directorships at the time any
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resolution providing for adoption, amendment or repeal is
presented to the Board). The stockholders shall also have
power to adopt, amend or repeal the Bylaws of the
Corporation. Any adoption, amendment or repeal of Bylaws of
the Corporation by the stockholders shall require, in
addition to any vote of the holders of any class or series
of stock of the Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of the
holders of at least sixty-six and two-thirds (66-2/3%) of
the voting power of all of the then outstanding shares of
the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as
a single class.
EIGHTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involved
intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law,
or (iv) for any transaction from which the director derived
an improper personal benefit.
If the Delaware General Corporation Law is hereafter
amended to authorize the further elimination or limitation
of the liability of a director, then the liability of a
director of the Corporation shall be eliminated or limited
to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of
this Article EIGHTH by the stockholders of the Corporation
shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such
repeal or modification.
NINTH: The Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation in
the manner prescribed by the laws of the State of Delaware
and all rights conferred upon stockholders are granted
subject to this reservation; provided, however, that,
notwithstanding any other provision of this Certificate of
Incorporation or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any
vote of the holders of any class or series of the stock of
this Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at
least 66-2/3% of the voting power of all of the then
outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors,
voting together as a single class, shall be required to
amend or repeal this Article NINTH, Article FIFTH, Article
SIXTH, Article SEVENTH or Article EIGHTH.
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<PAGE> 5
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate to be signed by a duly authorized officer on this __ day of August,
1995.
THE VANTIVE CORPORATION
By: /s/ Steven M. Goldsworthy
-------------------------------------
Steven M. Goldsworthy, Chairman of
the Board and Secretary
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[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH, EXHIBIT 5
A Professional Corporation]
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL (415) 328-6561 September 24, 1997 OUR FILE NO.
FAX (415) 327-3699 1220392-903000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for The Vantive Corporation, a Delaware corporation
(the "Company"), we are rendering this opinion in connection with the
registration under the Securities Act of 1933, as amended, of up to 1,297,444
shares of the Common Stock, $0.001 par value, of the Company ("Common Stock")
which may be issued pursuant to the exercise of options granted under The
Vantive Corporation Amended and Restated 1991 Stock Option Plan (the "Option
Plan") and options granted under the Innovative Computer Concepts, Inc. 1995
Stock Incentive Plan (the "Innovative Plan") and assumed by the Company (the
"Assumed Options") pursuant to the Agreement and Plan of Merger dated as of
August 13, 1997, as amended as of August 26, 1997 (the "Merger Agreement"), by
and among the Company, Igloo Acquisition Company, a Delaware corporation and
wholly-owned subsidiary of the Company, and Innovative Computer Concepts, Inc.,
a Delaware corporation.
We have examined all instruments, documents and records which 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. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters of
Delaware corporation law, we have based our opinion solely upon our examination
of such laws and the rules and regulations of the authorities administering such
laws, all as reported in standard, unofficial compilations. We have not obtained
opinions of counsel licensed to practice in jurisdictions other than the State
of California.
Based on such examination, we are of the opinion that the 1,297,444
shares of Common Stock which may be issued upon the exercise of options granted
under the Option Plan and the Assumed Options are duly authorized shares of the
Company's Common Stock, and, when issued against receipt of the consideration
therefor in accordance with the provisions of the Option Plan or the Assumed
Options, the Merger Agreement, and the Innovative Plan, respectively, will
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<PAGE> 2
be 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.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
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
16
