As filed with the Securities and Exchange Commission on November 29, 1996.
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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CENTURA SOFTWARE CORPORATION
(formerly GUPTA CORPORATION)
(Exact name of Registrant as specified in its charter)
CALIFORNIA 94-2874178
(State of Incorporation) (I.R.S. Employer Identification No.)
1060 Marsh Road
Menlo Park, California 94025
(Address of principal executive offices)
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1995 STOCK OPTION PLAN
1996 DIRECTORS' STOCK OPTION PLAN
1992 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
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Samuel M. Inman
President and Chief Executive Officer
CENTURA SOFTWARE CORPORATION
1060 Marsh Road
Menlo Park, California 94025
(415) 321-9500
(Name, address and telephone number of agent for service)
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COPIES TO:
MARK A. MEDEARIS
JOHN V. BAUTISTA
Venture Law Group
2800 Sand Hill Road
Menlo Park, California 94025
(415) 854-4488
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Securities to be Registered Maximum Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Registered Per Share Offering Fee
Price
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1992 Employee Stock Purchase Plan
Common Stock $.01 par value, 100,000 shares $3.25 (1) $325,000 $112.07
Reserved for Issuance
1995 Stock Option Plan
Common Stock $.01 par value, 1,000,000 shares $3.25 (1) $3,250,000 $1,120.69
Reserved for Grant of Additional
Options
1996 Directors' Stock Option Plan
Common Stock $.01 par value, 250,000 shares $3.25 (1) $812,500 $280.17
Reserved for Grant of Additional
Options
Common Stock $.01 par value, 250,000 shares $6.13 (2) $1,532,500 $528.45
Issuable upon Exercise of
Outstanding Options
TOTAL 1,600,000 shares $3.70 $5,920,000 $2,041.38
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan(s) described herein.
(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the total registration fee.
Computation based upon the average of the high and low prices of the
Common Stock as reported in the NASDAQ National Market System on
November 25, 1996 because the price at which the options to be granted in
the future may be exercised is not currently determinable.
(2) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. Computation based on the
weighted average per share exercise price (rounded to nearest cent) of
outstanding options under the referenced plan, the shares issuable under
which are registered hereby.
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PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 INFORMATION INCORPORATED BY REFERENCE
The following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated by
reference:
ITEM 3(A)
The Registrant's latest annual report on Form 10-K filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed.
ITEM 3(B)
All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act, since the end of the fiscal year covered by the
annual report on Form 10-K referred to in (a) above.
ITEM 3(C)
The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission
under Section 12 of the Exchange Act on December 17, 1992, as amended by
Amendment No. 1 to Form 8-A filed on January 29, 1993, and including any
further amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of
such documents.
ITEM 4 DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the legality of the issuance of the
Common Stock registered hereby will be passed upon for the Registrant by Venture
Law Group, Menlo Park, California. As of the date of this Registration
Statement, certain members of Venture Law Group and investment partnerships of
which members of Venture Law Group are partners beneficially own 28,000 shares
of the Registrant's Common Stock.
ITEM 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Articles of Incorporation limit the liability of directors
for monetary damages to the maximum extent permitted by California law. Such
limitation of liability has no effect on the
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availability of equitable remedies, such as injunctive relief or rescission. The
Registrant's By-laws include provisions whereby the directors, officers and
other agents of the Company are to be indemnified against certain liabilities to
the fullest extent permitted by the California Corporations Code. Pursuant to
approval of the Board of Directors, the Registrant entered into indemnification
agreements with each of its current directors and officers which provide for
indemnification of, and advancement of expenses to, such persons to the greatest
extent permitted by the California Corporations Code, including by reason of
action or inaction occurring in the past and circumstances in which
indemnification and the advancement of expenses are discretionary under
California law. It is the opinion of the staff of the Securities and Exchange
Commission that indemnification provisions such as those contained in these
agreements have no effect on a director's or officer's liability under the
federal securities laws. In addition, the Registrant maintains an insurance
policy covering its officers and directors under which the insurer has agreed to
pay, subject to certain exclusions, the amount of any claim made against the
officers or directors of the Registrant for wrongful acts that such officers or
directors may otherwise be required to pay or for which the Registrant is
required to indemnify such officers or directors.
ITEM 7 EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8 EXHIBITS
Exhibit
Number
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4.0 1996 Directors' Stock Option Plan and Form of Option Agreement for use
with Plan.
5.1 Opinion of Counsel as to Legality of Securities Being Registered.
23.1 Consent of Independent Accountants (see page 8).
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.0 Power of Attorney (see page 6).
ITEM 9 UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the
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securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act 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.
C. 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Centura Software Corporation, a corporation organized and existing under the
laws of the State of California, 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 Menlo Park, State of
California, on November 26, 1996.
CENTURA SOFTWARE CORPORATION
By: /s/Samuel M. Inman
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Samuel M. Inman, President, and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Craig W. Johnson and Samuel M. Inman,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said attorneys-in-
fact, or his substitute or substitutes, may do or cause to be done by virtue
hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/SAMUEL M. INMAN President, Chief Executive Officer, November 26, 1996
- --------------------- Chairman of the Board and Director
(Samuel M. Inman) (Principal Executive Officer)
/s/RICHARD A. GELHAUS Chief Financial Officer (Principal November 26, 1996
- --------------------- Financial and Accounting Officer) and
(Richard A. Gelhaus) Senior Vice President of Finance and
Operations
/s/UMANG P. GUPTA Director November 26, 1996
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(Umang P. Gupta)
/s/WILLIAM O. GRABE Director November 26, 1996
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(William O. Grabe)
/s/MAX D. HOPPER Director November 26, 1996
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(Max D. Hopper)
/s/D. BRUCE SCOTT Director November 26, 1996
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(D. Bruce Scott)
/s/ANTHONY SUN Director November 26, 1996
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(Anthony Sun)
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
statement on Form S-8 of our report dated July 15, 1996, which appears on
page 35 of Gupta Corporation's Annual Report on Form 10-K for the year ended
December 31, 1995.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
San Jose, California
November 22, 1996
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INDEX TO EXHIBITS
Exhibit
Number Document
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4.0 1996 Directors' Stock Option Plan and Form of Option Agreement
for use with Plan.
5.1 Opinion of Counsel as to Legality of Securities Being Registered.
23.1 Consent of Independent Accountants (see page 8).
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.0 Power of Attorney (see page 6).