<PAGE>
As filed with the Securities and Exchange Commission on October 8, 1999
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
INTERWOVEN, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 77-0523543
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
Interwoven, Inc.
1195 West Fremont Avenue, Suite 2000
Sunnyvale, California 94087
(Address of Principal Executive Offices, including Zip Code)
(1) 1996 Stock Option Plan
(2) 1998 Stock Option Plan
(3) 1999 Equity Incentive Plan
(4) 1999 Employee Stock Purchase Plan
(Full Titles of the Plans)
David M. Allen
Vice President and Chief Financial Officer
INTERWOVEN, INC.
1195 West Fremont Avenue, Suite 2000
Sunnyvale, California 94087
(408) 774-2000
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Matthew P. Quilter, Esq.
Horace L. Nash, Esq.
Darren L. Nunn, Esq.
William L. Hughes, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Amount Offering Price Aggregate Amount of
Title of Securities To Be Registered To Be Per Share Offering Price Registration
Registered Fee
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 3,343,913 (1) $17.00 (2) $56,846,521 (2) $15,804
Common Stock, $.001 par value 1,100,915 (3) $ 6.25 (4) $ 6,880,719 $ 1,913
- ---------------------------------------------------------------------------------------------------------------------
TOTAL 4,444,828 63,727,240 $17,717
=====================================================================================================================
</TABLE>
(1) Represents the aggregate of 3,043,913 shares available for grant under the
Registrant's 1999 Equity Incentive Plan and 300,000 shares available for
grant under Registrant's 1999 Employee Stock Purchase Plan.
(2) Estimated as of October 7, 1999 pursuant to Rule 457(c) solely pursuant for
the purpose of calculating the registration fee.
(3) Represents certain shares subject to options outstanding as of October 7,
1999 under the Registrant's 1996 Stock Option Plan and 1998 Stock Option
Plan.
(4) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
<PAGE>
PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) The Registrant's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), which
contains audited financial statements of the Registrant for the fiscal
year ended December 31, 1998.
(b) The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form 8-A filed under Section
12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by 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 registered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
ITEM 4. DESCRIPTION OF SECURITIES - SECURITIES TO BE PURCHASED.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Fenwick & West LLP, Palo Alto, California, will pass upon the validity of
the shares of Common Stock offered hereby. An investment partnership of Fenwick
& West LLP beneficially own an aggregate of 2,750 shares of the Registrant's
common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation includes a provision that eliminates
the personal liability of its directors to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability: (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders; (ii) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law; (iii) under
Section 174 of the Delaware General Corporation Law; or (iv) for any transaction
from which the director derived an improper personal benefit.
In addition, as permitted by Section 145 of the Delaware General
Corporation Law, the Bylaws of the Registrant provide that: (i) the Registrant
is required to indemnify its directors and officers, as well as directors and
officers of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise when they are serving in such capacities at the
request of the Registrant, to the fullest extent permitted by the Delaware
General Corporation Law; (ii) upon receipt of an undertaking to repay such
advances if indemnification is determined to be unavailable, the Registrant is
required to advance expenses, as incurred, to its directors and officers to the
fullest extent permitted by the Delaware General Corporation Law in connection
with a proceeding (except that the Registrant is not required to advance
expenses to a person against whom it brings a claim for breach of the duty of
loyalty, failure to act in good faith, intentional misconduct, knowing violation
of law or deriving an improper personal benefit); (iii) the rights conferred in
the Bylaws are not exclusive and the Registrant is authorized to enter into
indemnification agreements with its directors, officers and employees and
agents; and (iv) the Registrant may not retroactively amend the Bylaw provisions
in a way that adversely affects the indemnification
<PAGE>
provided thereunder
The Registrant's policy is to enter into indemnity agreements with each of
its directors and officers. The indemnity agreements provide that directors and
officers will be indemnified and held harmless against all expenses (including
attorneys' fees), judgments, fines, ERISA excise taxes or penalties and
settlement amounts paid or reasonably incurred by them in any action, suit or
proceeding, including any derivative action by or in the right of the
Registrant, on account of their services as a director or officer of the
Registrant or as directors or officers of any other corporation, partnership or
enterprise when they are serving in such capacities at the request of the
Registrant; except that no indemnity is provided in a derivative action in which
such director or officer is finally adjudged by a court to be liable to the
Company due to willful misconduct in the performance of his or her duty to the
Company, unless the court determines that such director or officer is entitled
to indemnification. The Registrant will not be obligated pursuant to the
agreements to indemnify or advance expenses to an indemnified party with respect
to proceedings or claims (i) initiated voluntarily by the indemnified party and
not by way of defense, except with respect to a proceeding authorized by the
Board of Directors and successful proceedings brought to enforce a right to
indemnification and/or advancement of expenses under the indemnity agreements;
(ii) for any amounts paid in settlement of a proceeding unless the Registrant
consents to such settlement; (iii) on account of any suit in which judgment is
rendered against the indemnified party for an accounting of profits made from
the purchase or sale by the indemnified party of securities of the Registrant
pursuant to the provisions of Section 16(b) of the Exchange Act and related laws
and regulations; (iv) on account of conduct by an indemnified party that is
finally adjudged to have been in bad faith or conduct that the indemnified party
did not reasonably believe to be in, or not opposed to, the best interests of
the Registrant; (v) on account of any criminal action or proceeding arising out
of conduct that the indemnified party had reasonable cause to believe was
unlawful; or (vi) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful.
The indemnity agreement requires a director or officer to reimburse the
Registrant for expenses advanced only if and to the extent it is ultimately
determined that the director or executive officer is not entitled, under
Delaware law, the Registrant's Certificate of Incorporation, the Registrant's
Bylaws, his or her indemnity agreement or otherwise to be indemnified for such
expenses. The indemnity agreement provides that it is not exclusive of any
rights a director or executive officer may have under the Certificate of
Incorporation, the Bylaws, other agreements, any majority-in-interest vote of
the stockholders or vote of disinterested directors, Delaware law, or otherwise.
The indemnity agreements require the Registrant to maintain director and
officer liability insurance to the extent that it is economically reasonable.
The Registrant currently carries a director and officer insurance policy.
The Registrant intends to enter into Indemnification Agreements with each
of its current directors and officers to give such directors and officers
additional contractual assurances regarding the scope of the indemnification set
forth in the Registrant's Certificate of Incorporation and Bylaws and to provide
additional procedural protections in the event of litigation. At present, there
is no pending litigation or proceeding involving a director, officer or employee
of the Registrant regarding which indemnification is sought, nor is the
Registrant aware of any threatened litigation that may result in claims for
indemnification.
Reference is also made to Section 7 of the Underwriting Agreement relating
to Registrant's initial public offering, effected pursuant to Registrant's
Registration Statement on Form S-1 (Registration No. 333-83779) originally filed
with the Commission on July 27, 1999, as subsequently amended (the "Form S-1"),
which provides for the indemnification of officers, directors and controlling
persons of the Registrant against certain liabilities. The indemnification
provision in the Registrant's Certificate of Incorporation, Bylaws and the
Indemnity Agreements entered into between the Registrant and each of its
directors and officers maybe sufficiently broad to permit indemnification of the
Registrant's directors and officers for liabilities arising under the Securities
Act.
The Registrant maintains directors' and officers' liability insurance.
See also the undertakings set out in response to Item 9.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Exhibit
Number Exhibit Title
------- --------------------------------------------
4.01 Registrant's Restated Certificate of Incorporation (incorporated
herein by reference to Exhibit 3.06 of the Form S-1)
4.02 Certificate of Amendment of Restated Certificate of Incorporation
of Registrant (incorporated herein by reference to Exhibit 3.07
of the Form S-1)
4.03 Registrant's Second Amended and Restated Certificate of
Incorporation (to be filed following the closing of the
Registrant's initial public offering) (incorporated herein by
reference to Exhibit 3.03 of the Form S-1)
4.04 Registrant's Restated Bylaws, as amended (incorporated herein by
reference to Exhibit 3.04 of the Form S-1.
4.05 Form of Certificate for Registrant's common stock (incorporated
herein by reference to Exhibit 4.01 of the Form S-1).
4.06 Third Amended and Restated Investors' Rights Agreement, dated as
of June 10, 1999 (incorporated herein by reference to Exhibit
4.02 of the Form S-1).
4.07 Form of Consent concerning the Third Amended and Restated
Investors' Rights Agreement, dated June 10, 1999 (incorporated
herein by reference to Exhibit 4.03 of the Form S-1).
4.08 Registrant's 1996 Stock Option Plan and related agreements
(incorporated herein by reference to Exhibit 10.02 of the Form S-
1).
4.09 Registrant's 1998 Stock Option Plan and related agreements
(incorporated herein by reference to Exhibit 10.03 of the Form S-
1).
4.10 Registrant's 1999 Equity Incentive Plan and related agreements
(incorporated herein by reference to Exhibit 10.04 of the Form S-
1).
4.11 Registrant's 1999 Employee Stock Purchase Plan and related
agreements (incorporated herein by reference to Exhibit 10.05 of
the Form S-1).
5.01 Opinion of Fenwick & West LLP regarding legality of the
securities being registered.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24.01 Power of Attorney (see page 5).
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
-3-
<PAGE>
statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(a)(i) and (1)(b)(ii) do not apply if the
- -------- -------
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act 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
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Sunnyvale, State of California, on this 8th day of
October 1999.
INTERWOVEN, INC.
By:/s/ David M. Allen
--------------------------------------------
David M. Allen
Vice President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Martin W. Brauns and David M.
Allen, and each of them, his true and lawful attorneys-in-fact and agents with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments to this registration statement on
Form S-8 (the "Registration Statement"), and to sign any registration statement
for the same offering covered by the Registration Statement that is to be
effective upon filing of the pursuant to Rule 462(b) promulgated under the
Securities Act of 1933, as amended, and all post-effective amendments thereto,
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or it might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents or any of them, or his or their substitutes, may lawfully 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 on October 8, 1999 by the
following persons in the capacities indicated:
Signature Title
--------- -----
/s/ Martin W. Brauns President and Chief Executive Officer
- ---------------------------
Martin W. Brauns
/s/ David M. Allen Vice President and Chief Financial Officer
- ---------------------------
David M. Allen
/s/ Peng T. Ong Chairman of the Board, Vice President,
- --------------------------- Professional Services and Secretary
Peng T. Ong
/s/ Kathryn C. Gould Director
- ---------------------------
Kathryn C. Gould
/s/ Mark W. Saul Director
- ---------------------------
Mark W. Saul
/s/ Mark C. Thompson Director
- ---------------------------
Mark C. Thompson
Director
- ---------------------------
Ronald E. F. Codd
-5-
<PAGE>
INTERWOVEN, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Exhibit Title
------- --------------------------------------------------------------
5.01 Opinion of Fenwick & West LLP regarding legality of the
securities being registered.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
24.01 Power of Attorney (see page 5).
<PAGE>
EXHIBIT 5.01
------------
October 8, 1999
Interwoven, Inc.
1195 West Fremont Avenue, Suite 2000
Sunnyvale, CA 94087
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed by Interwoven, Inc. a Delaware
corporation, with the Securities and Exchange Commission (the "Commission") on
or about October 8, 1999 in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 4,444,828 shares of
your Common Stock (the "Stock") subject to issuance by you upon the exercise of:
(1) stock options granted by you under your 1996 Stock Option Plan (the "1996
Plan"); (2) stock options granted by you under your 1998 Stock Option Plan (the
"1998 Option Plan"); (3) stock options granted or to be granted by you under
your 1999 Equity Incentive Plan (the "1999 Equity Plan"); and (4) purchase
rights granted or to be granted by you under your 1999 Employee Stock Purchase
Plan (the "1999 Purchase Plan"). The plans referred to in clauses (1) through
(4) above are collectively referred to in this letter as the "Plans." In
rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (Registration No. 333-83779)
filed with, and declared effective by, the Commission on October 7,
1999, together with the Exhibits filed as a part thereof, including
without limitation, your Certificate of Incorporation, Bylaws and each
of the Plans and related stock option grant or purchase and exercise
agreements;
(2) your registration statement on Form 8-A (File No. 000-27389), filed
with the Commission on September 20, 1999;
(3) the Registration Statement, together with the Exhibits filed as a part
thereof;
(4) the prospectuses prepared in connection with the Registration
Statement;
(5) the minutes of meetings and actions by written consent of the
shareholders and Board of Directors that are contained in your minute
books and the minute books of your predecessor, Interwoven, Inc., a
California corporation ("Interwoven California"), that are in our
possession;
(6) the stock records for you and Interwoven California that you have
provided to us (including a list of stockholders of even date herewith
and a list of option and warrant holders of even date herewith)
regarding your and Interwoven California's capital stock and rights to
acquire your and Interwoven California's
<PAGE>
capital stock, which you have represented to us are true and complete
as of their dates); and
(7) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the documents, the
lack of any undisclosed terminations, modifications, waivers or amendments to
any documents reviewed by us and the due authorization, execution and delivery
of all documents where due authorization, execution and delivery are
prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied for the
purposes of this opinion solely upon our examination of the documents referred
to above and have assumed the current accuracy and completeness of the
information obtained from public officials and records referred to above.
We are admitted to practice law in the State of California, and we express
no opinion herein with respect to the laws of any jurisdiction other than the
existing laws of the United States of America, the State of California and the
State of Delaware.
In connection with our opinion expressed below, we have assumed that, at or
prior to the time of the delivery of any shares of Stock, the Registration
Statement will have become effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock.
Based upon the foregoing, it is our opinion that the 4,444,828 shares of
Stock that may be issued and sold by you upon the exercise of: (1) stock options
granted under the 1996 Plan; (2) stock options granted under the 1998 Option
Plan; (3) stock options granted or to be granted under the 1999 Equity Plan; and
(4) purchase rights granted or to be granted under the 1999 Purchase Plan and,
when issued and sold in accordance with the applicable plan and stock option or
purchase agreements entered into or to be entered into in accordance with the
terms of such plan, and in the manner referred to in the relevant prospectus
associated with the Registration Statement, will be validly issued, fully paid
and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the prospectuses constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof.
Very truly yours,
/s/ FENWICK & WEST LLP
<PAGE>
EXHIBIT 23.2
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, 1999, relating to the
financial statements of Interwoven, Inc., which appears on page F-2 of
Interwoven, Inc.'s Registration Statement on Form S-1 (No. 333-83779)
/s/ PricewaterhouseCoopers LLP
San Jose, California
October 7, 1999
