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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
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(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
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(Address of principal executive offices) (Zip code)
THE VANTIVE CORPORATION
1997 NONSTATUTORY STOCK OPTION PLAN AND
THE VANTIVE CORPORATION
AMENDED AND RESTATED 1991 STOCK OPTION PLAN
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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
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: 408/982-5700
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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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered(1) registered per share(2) offering price(2) registration fee
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1997 Nonstatutory Stock
Option Plan
Common Stock 337,985 $21.5636 $ 7,288,173.30
par value $0.001 962,015 $ 30.375 $29,221,205.63
Amended and Restated
1991 Stock Option Plan
Common Stock 1,203,409 $ 30.375 $36,553,548.38
par value $0.001
TOTALS 2,503,409 $65,774,754.01 $19,403.55
</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 1997 Nonstatutory Stock Option Plan, the price is
computed on the basis of the weighted average exercise price. As to the
remaining shares under the 1997 Nonstatutory Stock Option Plan and the
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 May 5, 1998, as
reported on the National Association of Securities Dealers Automated
Quotations System.
<PAGE> 3
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, 1997, 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 LLP("GCWF"). As
of April 15, 1998, certain attorneys of GCWF owned 25,144 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 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.
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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 dividends and approval of any
transaction from which a director derives an improper personal benefit.
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(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 May 5,
1998.
The Vantive Corporation
By: /s/ David Schellhase
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David Schellhase
Vice President and General Counsel
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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, Kathleen A. Murphy,
and David Schellhase, 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 May 5, 1998.
<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/ Aneel Bhusri Director
- -------------------------------------
Aneel Bhusri
/s/ William H. Davidow Director
- -------------------------------------
William H. Davidow
/s/ Kevin G. Hall Director
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Kevin G. Hall
/s/ Raymond L. Ocampo, Jr. Director
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Raymond L. Ocampo, Jr.
/s/ Peter A. Roshko Director
- -------------------------------------
Peter A. Roshko
</TABLE>
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company, as filed with
the Secretary of State of the State of Delaware on August 18, 1995, is
incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-8 filed with the Securities and Exchange
Commission on September 26, 1997 (No. 333-36551)
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
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP] EXHIBIT 5
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL (650) 328-6561
FAX (650) 327-3699 OUR FILE NO.
1220392-903000
MAY 7, 1998
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 2,503,409
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 1997 Nonstatutory Stock Option Plan and The Vantive
Corporation Amended and Restated 1991 Stock Option Plan (collectively, the
"Plans").
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 2,503,409
shares of Common Stock which may be issued upon the exercise of options granted
under the Plans 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 Plans, will 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 LLP
GRAY CARY WARE & FREIDENRICH LLP
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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 21, 1998
included in The Vantive Corporation's Form 10-K for the year ended December 31,
1997 and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
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ARTHUR ANDERSEN LLP
San Jose, California
May 6, 1998
