<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 24, 1999.
REGISTRATION NO. 333-________
- --------------------------------------------------------------------------------
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)
<TABLE>
<S> <C>
DELAWARE 77-0266662
- ------------------------------------------------ ------------------------------------
(State or other jurisdiction of incorporation or (I.R.S. employer identification no.)
organization)
</TABLE>
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
-----------------------------------
(Full title of the plan)
THOMAS L. THOMAS
CHAIRMAN OF THE BOARD OF DIRECTORS AND
CHIEF EXECUTIVE OFFICER
THE VANTIVE CORPORATION
2455 AUGUSTINE DRIVE
SANTA CLARA, CA 95054
--------------------------------------
(Name and address of agent for service)
(408) 982-5700
(Telephone number, including area code, of agent for service)
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Proposed
Proposed Maximum Maximum
Title of Securities to be Amount to be Offering Price Aggregate Amount of
Registered(1) Registered(2) Per Share(3) Offering Price(3) Registration Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1997 NONSTATUTORY STOCK OPTION PLAN 999,838 shares $ 6.5833 $ 6,582,233.51
Common Stock, ($0.001 par value) 1,450,162 shares $10.28125 $14,909,478.10
Total: 2,450,000 shares $21,491,711.61 $5,974.69
============================================================================================================
</TABLE>
(1) The securities to be registered include options to acquire such Common
Stock.
(2) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1997 Nonstatutory Stock
Option Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt
of consideration which results in an increase in the number of the
outstanding shares of Common Stock.
(3) Estimated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended, solely for purposes of calculating the registration fee. As to
the 999,838 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 1,450,162
remaining shares issuable under the 1997 Nonstatutory Stock Option Plan,
the price is based upon the average of the high and low prices of the
Common Stock on June 21, 1999, as reported by the Nasdaq National
Market.
1
<PAGE> 2
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 previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, filed on May 14, 1999.
(b) The Company's Annual Report on Form 10-K filed for the fiscal
year ended December 31, 1998, filed with the Commission on March 31, 1999.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on August 9, 1995 and
December 18, 1998, including any amendments or reports filed for the purpose of
updating such descriptions.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, filed after the date of this registration
statement and 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 June 22, 1999, certain attorneys of GCWF owned 18,232 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.
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.
2
<PAGE> 3
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(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 (1)(i) and (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 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.
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.
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.
3
<PAGE> 4
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 June 24,
1999.
THE VANTIVE CORPORATION
By: /s/ Leonard LeBlanc
-------------------------------------
Leonard LeBlanc
Executive Vice President and Chief
Financial Officer
4
<PAGE> 5
SIGNATURES AND POWER OF ATTORNEY
The officers and directors of The Vantive Corporation, whose signatures
appear below, hereby constitute and appoint Thomas L. Thomas, Leonard LeBlanc,
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 June 24, 1999.
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<CAPTION>
Signature Title Date
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C>
/s/ Thomas L. Thomas Chairman of the Board of Directors, June 24, 1999
- ------------------------------- Chief Executive Officer and Director
Thomas L. Thomas (Principal Executive Officer)
/s/ Leonard LeBlanc Executive Vice President and Chief June 24, 1999
- ------------------------------- Financial Officer
Leonard LeBlanc (Principal Financial Officer)
/s/ Michael M. Loo Vice President, Finance (Principal June 24, 1999
- ------------------------------- Accounting Officer)
Michael M. Loo
/s/ William H. Davidow Director June 24, 1999
- -------------------------------
William H. Davidow
/s/ Peter A. Roshko Director June 24, 1999
- -------------------------------
Peter A. Roshko
/s/ Raymond L Ocampo Jr. Director June 24, 1999
- -------------------------------
Raymond L Ocampo Jr.
/s/ Patti Manuel Director June 24, 1999
- -------------------------------
Patti Manuel
</TABLE>
5
<PAGE> 6
EXHIBIT INDEX
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<CAPTION>
Exhibit
No: Description of Document
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<S> <C>
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 Restated Bylaws of the Company
4.3 Instruments Defining the Rights of Stockholders. Reference is
made to the Company's Registration Statement No. 000-26592 on
Form 8-A, together with the amendments and exhibits thereto,
which are incorporated herein by reference.
5 Opinion of Gray Cary Ware & Freidenrich LLP
23.1 Consent of Gray Cary Ware & Freidenrich LLP (included
in Exhibit 5)
23.2 Consent of Arthur Andersen LLP, Independent Accountants
24 Power of Attorney (included in signature pages to this
registration statement)
</TABLE>
<PAGE> 1
EXHIBIT 4.2
AMENDED & RESTATED
BYLAWS
OF
THE VANTIVE CORPORATION
(as amended on June 9, 1999)
<PAGE> 2
THE VANTIVE CORPORATION
A DELAWARE CORPORATION
AMENDED & RESTATED
BYLAWS
ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meeting. An annual meeting of the stockholders, for
the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall each year fix, which date shall be within thirteen months
subsequent to the later of the date of incorporation or the last annual meeting
of stockholders.
Section 1.2 Special Meetings. Special meetings of the stockholders, for
any purpose or purposes prescribed in the notice of the meeting, may be called
only (i) by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there
exists any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board of Directors for adoption) or (ii) by the
holders of not less than 10% of all shares entitled to cast votes at the
meeting, voting together as a single class and shall be held at such place, on
such date, and at such time as they shall fix. Business transacted at special
meetings shall be confined to the purpose or purposes stated in the notice.
Upon request in writing sent by registered mail to the president or
chief executive officer by any stockholder or stockholders entitled to call a
special meeting of stockholders pursuant to this Section 1.2, the board of
directors shall determine a place and time for such meeting, which time shall be
not less than one hundred twenty (120) nor more than one hundred thirty (130)
days after the receipt of such request, and a record date for the determination
of stockholders entitled to vote at such meeting shall be fixed by the board of
directors, in advance, which shall not be more than sixty (60) days nor less
than ten (10) days before the date of such meeting, nor more than sixty (60)
days prior to any other action. Following such receipt and determination by the
Secretary of the validity thereof, it shall be the duty of the Secretary to
cause notice to be given to the stockholders entitled to vote at such meeting,
in the manner set forth in Section 1.3, hereof, that a meeting will be held at
the place and time so determined.
Section 1.3 Notice of Meetings. Written notice of the place, date, and
time of all meetings of the stockholders shall be given, not less than ten (10)
nor more than sixty (60) days before the date on which the meeting is to be
held, to each stockholder entitled to vote at such meeting, except as otherwise
provided herein or required by law (meaning, here and hereinafter,
1
<PAGE> 3
as required from time to time by the Delaware General Corporation Law or the
Certificate of Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than thirty
(30) days after the date for which the meeting was originally noticed, or if a
new record date is fixed for the adjourned meeting, written notice of the place,
date, and time of the adjourned meeting shall be given in conformity herewith.
At any adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 1.4 Quorum. At any meeting of the stockholders, the holders of a
majority of all of the shares of the stock entitled to vote at the meeting,
present in person or by proxy, shall constitute a quorum for all purposes,
unless or except to the extent that the presence of a larger number may be
required by law.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to vote who
are present, in person or by proxy, may adjourn the meeting to another place,
date, or time.
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum, and all
matters shall be determined by a majority of the votes cast at such meeting.
Section 1.5 Conduct of the Stockholders' Meeting. At every meeting of
the stockholders, the Chairman, if there is such an officer, or if not, the
Chief Executive Officer of the Corporation, or in his absence the Vice President
designated by the Chief Executive Officer , or in the absence of such
designation any Vice President, or in the absence of the Chief Executive Officer
or any Vice President, a chairman chosen by the majority of the voting shares
represented in person or by proxy, shall act as Chairman. The Secretary of the
Corporation or a person designated by the Chairman shall act as Secretary of the
meeting. Unless otherwise approved by the Chairman, attendance at the
stockholders' meeting is restricted to stockholders of record, persons
authorized in accordance with Section 1.8 of these bylaws to act by proxy, and
officers of the Corporation.
Section 1.6 Conduct of Business. The Chairman shall call the meeting to
order, establish the agenda, and conduct the business of the meeting in
accordance therewith or, at the Chairman's discretion, it may be conducted
otherwise in accordance with the wishes of the stockholders in attendance. The
date and time of the opening and closing of the polls for each matter upon which
the stockholders will vote at the meeting shall be announced at the meeting.
The Chairman shall also conduct the meeting in an orderly manner, rule
on the precedence of and procedure on, motions and other procedural matters, and
exercise discretion with respect to such procedural matters with fairness and
good faith toward all those entitled to take part. The Chairman may impose
reasonable limits on the amount of time taken up at the
2
<PAGE> 4
meeting on discussion in general or on remarks by any one stockholder. Should
any person in attendance become unruly or obstruct the meeting proceedings, the
Chairman shall have the power to have such person removed from participation.
Notwithstanding anything in the bylaws to the contrary, no business shall be
conducted at a meeting except in accordance with the procedures set forth in
this Section 1.6 and Section 1.7, below. The Chairman of a meeting shall, if the
facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this Section 1.6 and Section 1.7, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
Section 1.7 Notice of Stockholder Business. At an annual or special
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before a
meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
properly brought before the meeting by or at the direction of the Board of
Directors, (c) properly brought before an annual meeting by a stockholder, or
(d) properly brought before a special meeting by a stockholder, but if, and only
if, the notice of a special meeting provides for business to be brought before
the meeting by stockholders. For business to be properly brought before a
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation. To be timely, a stockholder
proposal to be presented at an annual meeting shall be received at the
Corporation's principal executive offices not less than 120 calendar days in
advance of the date that the Corporation's (or the Corporation's predecessor's)
proxy statement was released to stockholders in connection with the previous
year's annual meeting of stockholders, except that if no annual meeting was held
in the previous year or the date of the annual meeting has been changed by more
than thirty (30) calendar days from the date contemplated at the time of the
previous year's proxy statement, or in the event of a special meeting, notice by
the stockholder to be timely must be received not later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. A stockholder's
notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the annual or special meeting (a) a brief description
of the business desired to be brought before the annual or special meeting and
the reasons for conducting such business at the special meeting, (b) the name
and address, as they appear on the Corporation's books, of the stockholder
proposing such business, (c) the class and number of shares of the Corporation
which are beneficially owned by the stockholder, and (d) any material interest
of the stockholder in such business.
Section 1.8 Proxies and Voting. At any meeting of the stockholders,
every stockholder entitled to vote may vote in person or by proxy authorized by
an instrument in writing or by a transmission permitted by law filed in
accordance with the procedure established for the meeting. No stockholder may
authorize more than one proxy for his shares.
Each stockholder shall have one vote for every share of stock entitled
to vote which is registered in his or her name on the record date for the
meeting, except as otherwise provided herein or required by law.
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<PAGE> 5
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law, all other matters shall be determined by a
majority of the votes cast.
Section 1.9 Stock List. A complete list of stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the number of shares
registered in his or her name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place
where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any such stockholder
who is present. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number and Term of Office. The number of directors shall
initially be 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). A vacancy resulting from the
removal of a director by the stockholders as provided in Article II, Section 2.3
below may be filled at special meeting of the stockholders held for that
purpose. All directors shall hold office until the expiration of the term for
which elected and until their respective successors are elected, except in the
case of the death, resignation or removal of any director.
Section 2.2 Vacancies and Newly Created Directorships. 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, retirement, disqualification 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
4
<PAGE> 6
term expiring at the next annual meeting of stockholders. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
Section 2.3 Removal. Subject to the rights of 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 II, Section 2.1 above.
Directors so chosen shall hold office until the new annual meeting of
stockholders.
Section 2.4 Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place or places, on such date or dates, and at such time
or times as shall have been established by the Board of Directors and publicized
among all directors. A notice of each regular meeting shall not be required.
Section 2.5 Special Meetings. Special meetings of the Board of Directors
may be called by one-third of the directors then in office (rounded up to the
nearest whole number) or by the chief executive officer and shall be held at
such place, on such date, and at such time as they or he or she shall fix.
Notice of the place, date, and time of each such special meeting shall be given
each director by whom it is not waived by mailing written notice not fewer than
five (5) days before the meeting or by telegraphing or personally delivering the
same not fewer than twenty-four (24) hours before the meeting. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at a
special meeting.
Section 2.6 Quorum. At any meeting of the Board of Directors, a majority
of the total number of authorized directors shall constitute a quorum for all
purposes. If a quorum shall fail to attend any meeting, a majority of those
present may adjourn the meeting to another place, date, or time, without further
notice or waiver thereof.
Section 2.7 Participation in Meetings by Conference Telephone. Members
of the Board of Directors, or of any committee thereof, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and such participation shall constitute presence in
person at such meeting.
Section 2.8 Conduct of Business. At any meeting of the Board of
Directors, business shall be transacted in such order and manner as the Board
may from time to time determine, and all matters shall be determined by the vote
of a majority of the directors present, except as otherwise provided herein or
required by law. Action may be taken by the Board of Directors without a meeting
if all members thereof consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the Board of Directors.
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<PAGE> 7
Section 2.9 Powers. The Board of Directors may, except as otherwise
required by law, exercise all such powers and do all such acts and things as may
be exercised or done by the Corporation, including, without limiting the
generality of the foregoing, the unqualified power:
1. To declare dividends from time to time in accordance
with law;
2. To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
3. To authorize the creation, making and issuance, in such
form as it may determine, of written obligations of every kind,
negotiable or non-negotiable, secured or unsecured, and to do
all things necessary in connection therewith;
4. To remove any officer of the Corporation with or without
cause, and from time to time to devolve the powers and duties of
any officer upon any other person for the time being;
5. To confer upon any officer of the Corporation the power
to appoint, remove and suspend subordinate officers, employees
and agents;
6. To adopt from time to time such stock option, stock
purchase, bonus or other compensation plans for directors,
officers, employees and agents of the Corporation and its
subsidiaries as it may determine;
7. To adopt from time to time such insurance, retirement,
and other benefit plans for directors, officers, employees and
agents of the Corporation and its subsidiaries as it may
determine; and
8. To adopt from time to time regulations, not inconsistent
with these bylaws, for the management of the Corporation's
business and affairs.
Section 2.10 Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the Board of Directors.
Section 2.11 Nomination of Director Candidates. Subject to the rights of
holders of any class or series of Preferred Stock then outstanding, nominations
for the election of Directors may be made by the Board of Directors or a proxy
committee appointed by the Board of Directors or by any stockholder entitled to
vote in the election of Directors generally. However, any stockholder entitled
to vote in the election of Directors generally may nominate one or more persons
for election as Directors at a meeting only if timely notice of such
stockholder's intent to make such nomination or nominations has been given in
writing to the Secretary of the Corporation. To be timely, a stockholder
nomination for a director to be elected at an annual meeting shall be received
at the Corporation's principal executive offices not less than 120
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<PAGE> 8
calendar days in advance of the date that the Corporation's (or the
Corporation's Predecessor's) proxy statement was released to stockholders in
connection with the previous year's annual meeting of stockholders, except that
if no annual meeting was held in the previous year or the date of the annual
meeting has been changed by more than 30 calendar days from the date
contemplated at the time of the previous year's proxy statement, or in the event
of a nomination for director to be elected at a special meeting, notice by the
stockholders to be timely must be received not later than the close of business
on the tenth day following the day on which such notice of the date of the
special meeting was mailed or such public disclosure was made. Each such notice
shall set forth: (a) the name and address of the stockholder who intends to make
the nomination and of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote for the election of Directors on the date of such
notice and intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice; (c) a description of all
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) such other
information regarding each nominee proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission, had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (e) the consent of each
nominee to serve as a director of the Corporation if so elected.
In the event that a person is validly designated as a nominee in
accordance with this Section 2.11 and shall thereafter become unable or
unwilling to stand for election to the Board of Directors, the Board of
Directors or the stockholder who proposed such nominee, as the case may be, may
designate a substitute nominee upon delivery, not fewer than five days prior to
the date of the meeting for the election of such nominee, of a written notice to
the Secretary setting forth such information regarding such substitute nominee
as would have been required to be delivered to the Secretary pursuant to this
Section 2.11 had such substitute nominee been initially proposed as a nominee.
Such notice shall include a signed consent to serve as a director of the
Corporation, if elected, of each such substitute nominee.
If the chairman of the meeting for the election of Directors determines
that a nomination of any candidate for election as a Director at such meeting
was not made in accordance with the applicable provisions of this Section 2.11,
such nomination shall be void; provided, however, that nothing in this Section
2.11 shall be deemed to limit any voting rights upon the occurrence of dividend
arrearages provided to holders of Preferred Stock pursuant to the Preferred
Stock designation for any series of Preferred Stock.
ARTICLE III
COMMITTEES
Section 3.1 Committees of the Board of Directors. The Board of
Directors, by a vote of a majority of the whole Board, may from time to time
designate committees of the Board, with such lawfully delegable powers and
duties as it thereby confers, to serve at the pleasure of the
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Board and shall, for those committees and any others provided for herein, elect
a director or directors to serve as the member or members, designating, if it
desires, other directors as alternate members who may replace any absent or
disqualified member at any meeting of the committee. Any committee so designated
may exercise the power and authority of the Board of Directors to declare a
dividend, to authorize the issuance of stock or to adopt a certificate of
ownership and merger pursuant to Section 253 of the Delaware General Corporation
Law if the resolution which designates the committee or a supplemental
resolution of the Board of Directors shall so provide. In the absence or
disqualification of any member of any committee and any alternate member in his
place, the member or members of the committee present at the meeting and not
disqualified from voting, whether or not he or she or they constitute a quorum,
may by unanimous vote appoint another member of the Board of Directors to act at
the meeting in the place of the absent or disqualified member.
Section 3.2 Conduct of Business. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings;
one-third of the authorized members shall constitute a quorum unless the
committee shall consist of one or two members, in which event one member shall
constitute a quorum; and all matters shall be determined by a majority vote of
the members present. Action may be taken by any committee without a meeting if
all members thereof consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of such committee.
ARTICLE IV
OFFICERS
Section 4.1 Generally. The officers of the Corporation shall consist of
a Chief Executive Officer, a President, one or more Vice Presidents, a
Secretary, a Chief Financial Officer and a Treasurer. The Corporation may also
have, at the discretion of the Board of Directors, a Chairman of the Board and
such other officers as may from time to time be appointed by the Board of
Directors. Officers shall be elected by the Board of Directors, which shall
consider that subject at its first meeting after every annual meeting of
stockholders. Each officer shall hold office until his or her successor is
elected and qualified or until his or her earlier resignation or removal. The
Chairman of the Board, if there shall be such an officer, and the Chief
Executive Officer shall each be members of the Board of Directors. Any number of
offices may he held by the same person, unless the certificate of incorporation
or these bylaws otherwise provide.
Section 4.2 Chairman of the Board. The Chairman of the Board, if there
shall be such an officer, shall, if present, preside at all meetings of the
Board of Directors, and exercise and perform such other powers and duties as may
be from time to time assigned to him by the Board of Directors or prescribed by
these bylaws.
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Section 4.3 Chief Executive Officer. The Chief Executive Officer shall
be the general manager and chief executive officer of the Corporation. Subject
to the provisions of these bylaws and to the direction of the Board of
Directors, he or she shall have the responsibility for the general management,
supervision and control of the business and affairs of the Corporation and shall
perform all duties and have all powers which are commonly incident to the office
of chief executive or which are delegated to him or her by the Board of
Directors. He or she shall have power to sign all stock certificates, contracts
and other instruments of the Corporation which are authorized and shall have
general supervision and direction of all of the other officers, employees and
agents of the Corporation.
Section 4.4 President. The President shall be the chief operating
officer of the Corporation. Subject to the provisions of these bylaws and to the
direction of the Board of Directors and Chief Executive Officer, he or she shall
have general management and supervision authority with respect to the day-to-day
operations of the business and the affairs of the Corporation (other than the
Chairman of the Board and the Chief Executive Officer), subject to the reporting
lines as may from time to time be prescribed by the Board of Directors. The
President shall also exercise and perform such other powers and duties as may
from time to time be assigned to him by the Board of Directors or prescribed by
the bylaws.
Section 4.5 Vice President. Each Vice President shall have such powers
and duties as may be delegated to him or her by the Board of Directors. One Vice
President shall be designated by the Board to perform the duties and exercise
the powers of the Chief Executive Officer in the event of the Chief Executive
Officer's absence or disability.
Section 4.6 Chief Financial Officer. The Chief Financial Officer shall
have the responsibility of maintaining the financial records of the Corporation
and shall have custody of all monies and securities of the Corporation. He or
she shall make such disbursements of the funds of the Corporation as are
authorized and shall render from time to time an account of all such
transactions and of the financial condition of the Corporation. The Chief
Financial Officer shall also perform such other duties as the Board of Directors
may from time to time prescribe.
Section 4.7 Treasurer. The Treasurer, controller and other assistants to
the Chief Financial Officer, in the order determined by the Board of Directors
or the Chief Executive Officer (or if there be no such determination then in the
order of their election) shall, in the absence of the Chief Financial Officer or
in the event of his or her inability or refusal to act, perform the duties and
exercise the powers of the Chief Financial Officer and shall perform such other
duties and have such other powers as the Board of Directors or the Chief
Executive Officer may from time to time prescribe.
Section 4.8 Secretary. The Secretary shall issue all authorized notices
for, and shall keep, or cause to be kept, minutes of all meetings of the
stockholders, the Board of Directors, and all committees of the Board of
Directors. He or she shall have charge of the corporate books and shall perform
such other duties as the Board of Directors may from time to time prescribe.
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Section 4.9 Delegation of Authority. The Board of Directors may from
time to time delegate the powers or duties of any officer to any other officers
or agents, notwithstanding any provision hereof.
Section 4.10 Removal. Any officer of the Corporation may be removed at
any time, with or without cause, by the Board of Directors.
Section 4.11 Action With Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the Chief Executive Officer
or any officer of the Corporation authorized by the Chief Executive Officer
shall have power to vote and otherwise act on behalf of the Corporation, in
person or by proxy, at any meeting of stockholders of or with respect to any
action of stockholders of any other corporation in which this Corporation may
hold securities and otherwise to exercise any and all rights and powers which
this Corporation may possess by reason of its ownership of securities in such
other corporation.
ARTICLE V
STOCK
Section 5.1 Certificates of Stock. Each stockholder shall be entitled to
a certificate signed by, or in the name of the Corporation by, the President or
the Chief Financial Officer or a Vice President, and by the Secretary or an
Assistant Secretary, or the Treasurer or an Assistant Treasurer, certifying the
number of shares owned by him or her. Any of or all the signatures on the
certificate may be facsimile.
Section 5.2 Transfers of Stock. Transfers of stock shall be made only
upon the transfer books of the Corporation kept at an office of the Corporation
or by transfer agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance with Section 5.4
of Article V of these bylaws, an outstanding certificate for the number of
shares involved shall be surrendered for cancellation before a new certificate
is issued therefor.
Section 5.3 Record Date. The Board of Directors may fix a record date,
which shall not be more than sixty (60) nor fewer than ten (10) days before the
date of any meeting of stockholders, nor more than sixty (60) days prior to the
time for the other action hereinafter described, as of which there shall be
determined the stockholders who are entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof; to receive payment of any
dividend or other distribution or allotment of any rights; or to exercise any
rights with respect to any change, conversion or exchange of stock or with
respect to any other lawful action.
Section 5.4 Lost, Stolen or Destroyed Certificates. In the event of the
loss, theft or destruction of any certificate of stock, another may be issued in
its place pursuant to such regulations as the Board of Directors may establish
concerning proof of such loss, theft or destruction and concerning the giving of
a satisfactory bond or bonds of indemnity.
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Section 5.5 Regulations. The issue, transfer, conversion and
registration of certificates of stock shall be governed by such other
regulations as the Board of Directors may establish.
ARTICLE VI
NOTICES
Section 6.1 Notices. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder, director,
officer, employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the mails, postage paid, or by sending such notice by prepaid
telegram, mailgram, telecopy or commercial courier service. Any such notice
shall be addressed to such stockholder, director, officer, employee or agent at
his or her last known address as the same appears on the books of the
Corporation. The time when such notice shall be deemed to be given shall be the
time such notice is received by such stockholder, director, officer, employee or
agent, or by any person accepting such notice on behalf of such person, if hand
delivered, or the time such notice is dispatched, if delivered through the mails
or be telegram or mailgram.
Section 6.2 Waivers. A written waiver of any notice, signed by a
stockholder, director, officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent to
the notice required to be given to such stockholder, director, officer, employee
or agent. Neither the business nor the purpose of any meeting need be specified
in such a waiver.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Facsimile Signatures. In addition to the provisions for use
of facsimile signatures elsewhere specifically authorized in these bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
Section 7.2 Corporate Seal. The Board of Directors may provide a
suitable seal, containing the name of the Corporation, which seal shall be in
the charge of the Secretary. If and when so directed by the Board of Directors
or a committee thereof, duplicates of the seal may be kept and used by the
Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 7.3 Reliance Upon Books, Reports and Records. Each director,
each member of any committee designated by the Board of Directors, and each
officer of the Corporation shall, in the performance of his duties, be fully
protected in relying in good faith upon the books of account or other records of
the Corporation, including reports made to the Corporation by any of its
officers, by an independent certified public accountant, or by an appraiser
selected with reasonable care.
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Section 7.4 Fiscal Year. The fiscal year of the Corporation shall be as
fixed by the Board of Directors.
Section 7.5 Time Periods. In applying any provision of these bylaws
which require that an act be done or not done a specified number of days prior
to an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded, and the day of the event shall be included.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.1 Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative, is or was a director, officer or employee of
the Corporation or is or was serving at the request of the Corporation as a
director, officer or employee of another corporation, or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or employee or in any other capacity
while serving as a director, officer or employee, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by Delaware Law, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said Law permitted the Corporation
to provide prior to such amendment) against all expenses, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
amounts paid or to be paid in settlement and amounts expended in seeking
indemnification granted to such person under applicable law, this bylaw or any
agreement with the Corporation) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer or employee and shall inure to the
benefit of his or her heirs, executors and administrators; provided, however,
that, except as provided in Section 8.2 of this Article VIII, the Corporation
shall indemnify any such person seeking indemnity in connection with an action,
suit or proceeding (or part thereof) initiated by such person only if (a) such
indemnification is expressly required to be made by law, (b) the action, suit or
proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation, (c) such indemnification is provided by the Corporation, in its
sole discretion, pursuant to the powers vested in the Corporation under the
Delaware General Corporation Law, or (d) the action, suit or proceeding (or part
thereof) is brought to establish or enforce a right to indemnification under an
indemnity agreement or any other statute or law or otherwise as required under
Section 145 of the Delaware General Corporation Law. Such right shall be a
contract right and shall include the right to be paid by the Corporation
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, unless the Delaware General Corporation
Law then so prohibits, the payment of such expenses incurred by a director or
officer of the Corporation in his or her capacity as a director or officer (and
not in any other capacity in which service was or is tendered by such person
while a director or officer,
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including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under this Section 8.1 or
otherwise.
Section 8.2 Right of Claimant to Bring Suit. If a claim under Section
8.1 of this Article VIII is not paid in full by the Corporation within ninety
(90) days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if such suit is not frivolous or
brought in bad faith, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. The burden of proving such claim shall be on the
claimant. It shall be a defense to any such action (other then an action brought
to enforce a claim for expenses incurred in defending any proceeding in advance
of its final disposition where the required undertaking, if any, has been
tendered to this Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that claimant
has not met the applicable standard of conduct.
Section 8.3 Non-Exclusivity of Rights. The rights conferred on any
person in Sections 8.1 and 8.2 shall not be exclusive of any other right which
such persons may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 8.4 Indemnification Contracts. The Board of Directors is
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if the
Board of Directors so determines, greater than, those provided for in this
Article VIII.
Section 8.5 Insurance. The Corporation shall maintain insurance to the
extent reasonably available, at its expense, to protect itself and any such
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
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Section 8.6 Effect of Amendment. Any amendment, repeal or modification
of any provision of this Article VIII by the stockholders and the directors of
the Corporation shall not adversely affect any right or protection of a director
or officer of the Corporation existing at the time of such amendment, repeal or
modification.
ARTICLE IX
AMENDMENTS
Section 9.1 Amendment of Bylaws. 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 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 the Certificate of Incorporation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (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.
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<TABLE>
<S> <C>
ARTICLE I STOCKHOLDERS.....................................................................1
Section 1.1 Annual Meeting.........................................................1
Section 1.2 Special Meetings.......................................................1
Section 1.3 Notice of Meetings.....................................................1
Section 1.4 Quorum.................................................................2
Section 1.5 Conduct of the Stockholders' Meeting...................................2
Section 1.6 Conduct of Business....................................................2
Section 1.7 Notice of Stockholder Business.........................................3
Section 1.8 Proxies and Voting.....................................................3
Section 1.9 Stock List.............................................................4
ARTICLE II BOARD OF DIRECTORS..............................................................4
Section 2.1 Number and Term of Office..............................................4
Section 2.2 Vacancies and Newly Created Directorships..............................4
Section 2.3 Removal................................................................5
Section 2.4 Regular Meetings.......................................................5
Section 2.5 Special Meetings.......................................................5
Section 2.6 Quorum.................................................................5
Section 2.7 Participation in Meetings by Conference Telephone......................5
Section 2.8 Conduct of Business....................................................5
Section 2.9 Powers.................................................................5
Section 2.10 Compensation of Directors..............................................6
Section 2.11 Nomination of Director Candidates......................................6
ARTICLE III COMMITTEES.....................................................................7
Section 3.1 Committees of the Board of Directors...................................7
Section 3.2 Conduct of Business....................................................8
ARTICLE IV OFFICERS........................................................................8
Section 4.1 Generally..............................................................8
Section 4.2 Chairman of the Board..................................................8
Section 4.3 Chief Executive Officer................................................8
Section 4.4 President..............................................................9
Section 4.5 Vice President.........................................................9
Section 4.6 Chief Financial Officer................................................9
Section 4.7 Treasurer..............................................................9
Section 4.8 Secretary..............................................................9
Section 4.9 Delegation of Authority................................................9
Section 4.10 Removal................................................................9
Section 4.11 Action With Respect to Securities of Other Corporations................9
ARTICLE V STOCK...........................................................................10
</TABLE>
<PAGE> 17
<TABLE>
<S> <C>
Section 5.1 Certificates of Stock.................................................10
Section 5.2 Transfers of Stock....................................................10
Section 5.3 Record Date...........................................................10
Section 5.4 Lost, Stolen or Destroyed Certificates................................10
Section 5.5 Regulations...........................................................10
ARTICLE VI NOTICES........................................................................10
Section 6.1 Notices...............................................................10
Section 6.2 Waivers...............................................................11
ARTICLE VII MISCELLANEOUS.................................................................11
Section 7.1 Facsimile Signatures..................................................11
Section 7.2 Corporate Seal........................................................11
Section 7.3 Reliance Upon Books, Reports and Records..............................11
Section 7.4 Fiscal Year...........................................................11
Section 7.5 Time Periods..........................................................11
ARTICLE VIII INDEMNIFICATION OF DIRECTORS AND OFFICERS....................................11
Section 8.1 Right to Indemnification..............................................11
Section 8.2 Right of Claimant to Bring Suit.......................................12
Section 8.3 Non-Exclusivity of Rights.............................................13
Section 8.4 Indemnification Contracts.............................................13
Section 8.5 Insurance.............................................................13
Section 8.6 Effect of Amendment...................................................13
ARTICLE IX AMENDMENTS.....................................................................13
Section 9.1 Amendment of Bylaws...................................................13
</TABLE>
<PAGE> 1
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP] EXHIBIT 5
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL (650) 833-2000
FAX (650) 327-3699
WWW.GRAYCARY.COM
June 22, 1999
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 2,450,000 shares of the
Common Stock, $0.001 par value, of the Company ("Common Stock") which may be
issued pursuant to the terms of The Vantive Corporation 1997 Nonstatutory Stock
Option Plan (the "Plan").
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 2,450,000 shares of
Common Stock which may be issued pursuant to the Plan 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 Plan, 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
<PAGE> 1
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 22, 1999 included in The Vantive Corporation's Form 10-K for the year
ended December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
----------------------------------------
ARTHUR ANDERSEN LLP
San Jose, California
June 22, 1999
