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As filed with the Securities and Exchange Commission on November 22, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
________________
INTERWOVEN, INC.
(Exact name of the Registrant as specified in its charter)
Delaware 77-0523543
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) Identification no.)
1195 W. Fremont Avenue
Sunnyvale, California 94087
(408) 774-2000
(Address and telephone number of the Registrant's principal executive offices)
David M. Allen
Senior Vice President and Chief Financial Officer
Interwoven, Inc.
1195 W. Fremont Avenue
Sunnyvale, California 94087
(408) 774-2000
(Name, address and telephone number of the Registrant's agent for service)
Copies to:
Horace L. Nash, Esq.
William L. Hughes, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
(650) 494-0600
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Title of Each Class of Shares Maximum Aggregate
Amounts to be Offering Price Offering Amount of
to be Registered Registered Per Unit Price Registration Fee
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<S> <C> <S> <C> <C>
Common Stock, $0.001 par 1,110,117 $68.625(1) $76,181,790 $20,112
value per share....................................
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(c) under the Securities Act of
1933, as amended (the "Securities Act"), based upon the average of the high
and low prices of the Registrant's Common Stock as reported by the Nasdaq
National Market on November 21, 2000.
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant files
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to Section 8(a), may determine.
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PROSPECTUS (Subject to completion dated November 22, 2000)
[INTERWOVEN LOGO]
Interwoven, Inc.
1,110,117 Shares of Common Stock
________________
Interwoven's common stock trades on the Nasdaq National Market.
Last reported sale price on November 21, 2000: $69.9375 per share.
Trading Symbol: IWOV
The Offering
Under this prospectus, the selling stockholders named on pages 12 through 15 of
this prospectus may offer and sell shares of our common stock that they acquired
upon our acquisition of Ajuba Solutions, Inc. and Metacode Technologies, Inc.
________________
Investing in our common stock involves a high degree of risk. Please carefully
consider the "Risk Factors" beginning on page 4 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is November __, 2000
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
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TABLE OF CONTENTS
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Prospectus Summary............. 3 Plan of Distribution.................. 16
Risk Factors................... 4 Legal Matters......................... 18
Use of Proceeds................ 11 Experts............................... 18
Dividend Policy................ 11 Forward-Looking Statements............ 18
Selling Stockholders........... 12 Where You Can Find More Information... 18
</TABLE>
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ABOUT THIS PROSPECTUS
We make many statements in this prospectus under the captions "Prospectus
Summary," "Risk Factors" and elsewhere that are forward-looking statements
within the meaning of Section 27A of the Securities Act and Section 21E of the
Securities Exchange Act. These statements relate to our future plans,
objectives, expectations and intentions. We may identify these statements by the
use of the future tense, and words such as "believe," "expect," "anticipate,"
"intend" and "plan" and similar expressions. These forward-looking statements
involve risks and uncertainties. Our actual results could differ materially from
those anticipated in these forward-looking statements as a result of various
factors, including those we discuss in "Risk Factors" and elsewhere in this
prospectus. These forward-looking statements speak only as of the date of this
prospectus, and we caution you not to rely on these statements without also
considering the risks and uncertainties associated with these statements and our
business.
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Prospectus Summary
This summary highlights information contained elsewhere in this prospectus.
This summary is not complete and does not contain all the information you should
consider before buying shares in this offering. You should read the entire
prospectus carefully. Unless the context otherwise requires, the terms we, our,
us and Interwoven refer to Interwoven, Inc., a Delaware corporation.
Interwoven
Interwoven is a provider of software products and services that help
businesses and other organizations manage the information that makes up the
content of their web sites. In the Internet industry this is often referred to
as "web content management." Our flagship software product, TeamSite, is
designed to help customers develop, maintain and extend large web sites that are
essential to their businesses. TeamSite incorporates widely accepted Internet
industry standards and is designed with an open architecture that allows it to
support a wide variety of web authoring tools and web application servers. Using
TeamSite, our customers can manage web content, control the versions of their
web sites, manage web site contribution and content approval processes, and
develop eBusiness applications. TeamSite allows large numbers of contributors
across an enterprise to add web content in a carefully-managed process. In
addition, our OpenDeploy product allows customers to automate the distribution
of web content across multiple web sites. By using our products, businesses can
accelerate their time-to-web, lower web operating costs, establish a
differentiated presence on the web and attract and retain customers. Currently,
we have licensed our software products to 503 customers operating in a broad
range of industries. Our customers include AltaVista, AT&T/TCI, BellSouth, Best
Buy, Cisco Systems, E*Trade, FedEx, Gap, General Electric, the U.S. Department
of Education, USWeb/CKS, Viacom/Nickelodeon and Yahoo!/GeoCities.
Interwoven, Inc. was incorporated under the laws of California in March
1995, and reincorporated under the laws of Delaware in October 1999. Our
principal executive offices are located at 1195 W. Fremont Avenue, Sunnyvale,
California 94087. The primary telephone number for our principal executive
office is (408) 774-2000.
The Offering
Former stockholders of Ajuba Solutions, Inc. and Metacode Technologies, Inc.
hold all 1,110,117 shares that may be offered under this prospectus. These
shares are being offered on a continuous basis under Rule 415 of the Securities
Act.
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<S> <C>
Common stock that may be offered
by the selling stockholders................................. 1,110,117 shares
Common stock to be outstanding after this offering.......... 51,141,497 shares*
Use of proceeds............................................. We will receive no proceeds of this offering.
</TABLE>
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* Based on the number of shares outstanding as of November 21, 2000.
Interwoven (R), TeamSite (R) and OpenDeploy (TM) are our trademarks. This
prospectus also contains trademarks of other companies and organizations.
Unless otherwise indicated, all information contained in this prospectus
does not reflect the completion of the two-for-one forward stock split of the
outstanding shares of our common stock that was approved by our Board of
Directors in October 2000. This stock split is subject to stockholder approval
of an amendment to our Third Amended and Restated Certificate of Incorporation
at the special meeting of our stockholders to be held on December 12, 2000.
Should our stockholders approve this amendment, the shares resulting from the
split are expected to be distributed on or about December 29, 2000.
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Risk Factors
The risks described below are not the only ones facing our company. Additional
risks not presently known to us, or that we currently deem immaterial, may also
impair our business operations. Our business, financial condition or results of
operations could be seriously harmed by any of these risks. The trading price of
our common stock could decline due to any of these risks.
Risks Related to Interwoven's Business
Our operating history is limited, so it will be difficult for you to evaluate
our business in making an investment decision.
We were incorporated in March 1995 and have a limited operating history. We
are still in the early stages of our development, which makes the evaluation of
our business operations and our prospects difficult. We shipped our first
product in May 1997. Since that time, we have derived substantially all of our
revenues from licensing our TeamSite product and related services. In evaluating
our common stock, you should consider the risks and difficulties frequently
encountered by early stage companies in new and rapidly evolving markets,
particularly those companies whose businesses depend on the Internet. These
risks and difficulties, as they apply to us in particular, include:
. potential fluctuations in operating results and uncertain growth rates;
. limited market acceptance of our products;
. concentration of our revenues in a single product or family of products;
. our dependence on a small number of orders for most of our revenue;
. our need to expand our direct sales forces and indirect sales channels;
. our need to manage rapidly expanding operations; and
. our need to attract and train qualified personnel.
If we do not increase our license revenues significantly, we will fail to
achieve profitability.
We have incurred net losses in each quarter since our inception, and we
expect our net losses to increase. We incurred net losses of $2.9 million in
1997, $6.3 million in 1998, $15.7 million in 1999 and $12.2 million for the nine
months ended September 30, 2000. As of September 30, 2000, we had an accumulated
deficit of approximately $38.1 million. To compete effectively, we plan to
continue to invest aggressively to expand our sales and marketing, research and
development, and professional services organizations. As a result, if we are to
achieve profitability we will need to increase our revenues significantly,
particularly our license revenues. We cannot predict when we will become
profitable, if at all.
Our operating results fluctuate widely and are difficult to predict, so we may
fail to satisfy the expectations of investors or market analysts and our stock
price may decline.
Our quarterly operating results have fluctuated significantly in the past,
and we expect them to continue to fluctuate unpredictably in the future. It is
possible that in some future periods our results of
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operations may not meet or exceed the expectations of public market analysts and
investors. If this occurs, the price of our common stock is likely to decline.
Acquisitions may harm our business by being more difficult than expected to
integrate, by diverting management's attention or by subjecting us to unforeseen
accounting problems.
As part of our business strategy, we have acquired and in the future may
seek to acquire or invest in additional businesses, products or technologies
that we feel could complement or expand our business. If we identify an
appropriate acquisition opportunity, we might be unable to negotiate the terms
of that acquisition successfully, finance it, or integrate it into our existing
business and operations. We may also be unable to select, manage or absorb
current or future acquisitions successfully. Further, negotiation of potential
acquisitions, integration of acquired businesses, diverts management time and
other resources. We may have to use a substantial portion of our available cash
to consummate an acquisition. On the other hand, if we use our securities for
acquisitions, our stockholders could suffer significant dilution. Further, we
cannot assure you that any particular acquisition, even if successfully
completed, will ultimately benefit our business. These difficulties could harm
our business and operating results.
In connection with our acquisitions, we may be required to write off
software development costs or other assets, incur severance liabilities,
amortization expenses related to goodwill and other intangible assets, or incur
debt, any of which could harm on our business, financial condition, cash flows
and results of operations. The companies we acquire may not have audited
financial statements, detailed financial information, or adequate internal
controls. There can be no assurance that an audit subsequent to the completion
of an acquisition will not reveal matters of significance, including with
respect to revenues, expenses, contingent or other liabilities, and intellectual
property. Any such write off could harm our financial results.
We face significant competition, which could make it difficult to acquire and
retain customers and inhibit any future growth.
We expect the competition in the market in which we operate to persist and
intensify in the future. Competitive pressures may seriously harm our business
and results of operations if they inhibit our future growth, or require us to
hold down or reduce prices, or increase our operating costs. Our competitors
include:
. potential customers that utilize in-house development efforts; and
. developers of software that directly addresses the need for web content
management, such as Vignette, Eprise, Documentum and Rational.
We also face potential competition from companies--for example, Microsoft
and IBM--that may decide in the future to enter our market. Many of our existing
and potential competitors have longer operating histories, greater name
recognition, larger customer bases and significantly greater financial,
technical and marketing resources than we do. Many of these companies can also
leverage extensive customer bases and adopt aggressive pricing policies to gain
market share. Potential competitors may bundle their products in a manner that
discourages users from purchasing our products. Barriers to entering the web
content management software market are relatively low.
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Our lengthy sales cycle makes it particularly difficult for us to forecast
revenue, requires us to incur high costs of sales, and aggravates the
variability of quarterly fluctuations.
The time between our initial contact with a potential customer and the
ultimate sale, which we refer to as our sales cycle, typically ranges between
three and nine months depending largely on the customer. If we do not shorten
our sales cycle, it will be difficult for us to reduce sales and marketing
expenses. In addition, as a result of our lengthy sales cycle, we have only a
limited ability to forecast the timing and size of specific sales. This makes
it more difficult to predict quarterly financial performance, or to achieve
expected performance, and any delay in completing sales in a particular
quarter could harm our business and cause our operating results to vary
significantly.
We rely heavily on sales of one product, so if it does not achieve market
acceptance we are likely to experience larger losses.
Since 1997, we have generated substantially all of our revenues from
licenses of, and services related to, our TeamSite product. We believe that
revenues generated from TeamSite will continue to account for a large portion of
our revenues for the foreseeable future. A decline in the price of TeamSite, or
our inability to increase license sales of TeamSite, would harm our business and
operating results more seriously than it would if we had several different
products and services to sell. In addition, our future financial performance
will depend upon successfully developing and selling enhanced versions of
TeamSite. If we fail to deliver product enhancements or new products that
customers want it will be more difficult for us to succeed.
We depend on our direct sales force to sell our products, so future growth will
be constrained by our ability to hire and train new sales personnel.
We sell our products primarily through our direct sales force, and we expect
to continue to do so in the future. Our ability to sell more products is limited
by our ability to hire and train direct sales personnel, and we believe that
there is significant competition for direct sales personnel with the advanced
sales skills and technical knowledge that we need. Some of our competitors may
have greater resources to hire personnel with that skill and knowledge. If we
are not able to hire experienced and competent sales personnel, our business
will be harmed. Furthermore, because we depend on our direct sales force, any
turnover in our sales force can significantly harm our operating results. Sales
force turnover tends to slow sales efforts until replacement personnel can be
recruited and trained to become productive.
If we do not continue to develop and maintain our indirect sales channels, we
will be less likely to increase our revenues.
If we do not develop indirect sales channels, we may miss sales
opportunities that might be available through these other channels. For example,
domestic and international resellers may be able to reach new customers more
quickly or more effectively than our direct sales force. Although we are
currently investing and plan to continue to invest significant resources to
develop and maintain these indirect sales channels, we may not succeed in
establishing a channel that can market our products effectively and provide
timely and cost-effective customer support and services. In addition, we may not
be able to manage conflicts across our various sales channels, and our focus on
increasing sales through our indirect channel may divert management resources
and attention from direct sales.
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We must attract and retain qualified personnel, which is particularly difficult
for us because we compete with other Internet-related software companies and are
located in the San Francisco Bay area, where competition for personnel is
extremely intense.
Our success depends on our ability to attract and retain qualified,
experienced employees. We compete for experienced engineering, sales and
consulting personnel with Internet professional services firms, software
vendors, consulting and professional services companies. It is also particularly
difficult to recruit and retain personnel in the San Francisco Bay area, where
we are located. Although we provide compensation packages that include incentive
stock options, cash incentives and other employee benefits, the volatility and
current market price of our common stock may make it difficult for us to
attract, assimilate and retain highly qualified employees in the future. In
addition, our customers generally purchase consulting and implementation
services. While we have recently established relationships with some third-party
service providers, we continue to be the primary provider of these services. It
is difficult and expensive to recruit, train and retain qualified personnel to
perform these services, and we may from time to time have inadequate levels of
staffing to perform these services. As a result, our growth could be limited due
to our lack of capacity to provide those services, or we could experience
deterioration in service levels or decreased customer satisfaction, any of which
would harm our business.
If we do not improve our operational systems on a timely basis, we will be more
likely to fail to manage our growth properly.
We have expanded our operations rapidly in recent years. We intend to
continue to expand our operational systems for the foreseeable future to
pursue existing and potential market opportunities. This growth places a
significant demand on management and operational resources. In order to manage
our growth, we need to implement and improve our operational systems,
procedures and controls on a timely basis. If we fail to implement and improve
these systems in a timely manner, our business will be seriously harmed.
Difficulties in introducing new products and upgrades in a timely manner will
make market acceptance of our products less likely.
The market for our products is characterized by rapid technological change,
frequent new product introductions and Internet-related technology enhancements,
uncertain product life cycles, changes in customer demands and evolving industry
standards. We expect to add new content management functionality to our product
offerings by internal development, and possibly by acquisition. Content
management technology is more complex than most software, and new products or
product enhancements can require long development and testing periods. Any
delays in developing and releasing new products could harm our business. New
products or upgrades may not be released according to schedule or may contain
defects when released. Either situation could result in adverse publicity, loss
of sales, delay in market acceptance of our products or customer claims against
us, any of which could harm our business. If we do not develop, license or
acquire new software products, or deliver enhancements to existing products on a
timely and cost-effective basis, our business will be harmed.
Our products might not be compatible with all major platforms, which could limit
our revenues.
Our products currently operate on the Sun Solaris operating system and
Microsoft NT and Windows 2000 Platforms. In addition, our products are required
to interoperate with leading web content authoring tools and web application
servers. We must continually modify and enhance our products to keep pace with
changes in these applications and operating systems. If our products were to be
incompatible with a popular new operating system or Internet business
application, our business would be harmed. In addition, uncertainties related to
the timing and nature of new product announcements, introductions or
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modifications by vendors of operating systems, browsers, back-office
applications and other Internet-related applications could also harm our
business.
We have no significant experience conducting operations internationally, which
may make it more difficult than we expect to expand overseas and may increase
the costs of doing so.
We derive substantially all of our revenues from sales to North American
customers. We are expanding our international operations and plan to do so for
the foreseeable future. There are many barriers to competing successfully in the
international arena, including:
. costs of customizing products for foreign countries;
. restrictions on the use of software encryption technology;
. dependence on local vendors;
. compliance with multiple, conflicting and changing governmental laws and
regulations;
. longer sales cycles; and
. import and export restrictions and tariffs.
As a result of these competitive barriers, we cannot assure you that we will
be able to market, sell and deliver our products and services in international
markets.
If we fail to establish and maintain strategic relationships, the market
acceptance of our products, and our profitability, may suffer.
To offer products and services to a larger customer base our direct sales
force depends on strategic partnerships and marketing alliances to obtain
customer leads, referrals and distribution. If we are unable to maintain our
existing strategic relationships or fail to enter into additional strategic
relationships, our ability to increase our sales and reduce expenses will be
harmed. We would also lose anticipated customer introductions and co-marketing
benefits. Our success depends in part on the success of our strategic partners
and their ability to market our products and services successfully. In addition,
our strategic partners may not regard us as significant for their own
businesses. Therefore, they could reduce their commitment to us or terminate
their respective relationships with us, pursue other partnerships or
relationships, or attempt to develop or acquire products or services that
compete with our products and services. Even if we succeed in establishing these
relationships, they may not result in additional customers or revenues.
If our services revenues do not grow substantially, our total revenues are
unlikely to increase.
Our services revenues represent a significant component of our total
revenues: 21% of total revenues for 1998, 36% of total revenues for 1999 and 31%
of total revenues for the nine months ended September 30, 2000. We anticipate
that services revenues will continue to represent a significant percentage of
total revenues in the future. To a large extent, the level of services revenues
depends upon our ability to license products which generate follow-on services
revenue. Additionally, services revenues growth depends on ongoing renewals of
maintenance and service contracts. Moreover, if third-party organizations such
as systems integrators become proficient in installing or servicing our
products, our services revenues could decline. Our ability to increase services
revenues will depend in large part on our ability to increase the
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capacity of our professional services organization, including our ability to
recruit, train and retain a sufficient number of qualified personnel.
We might not be able to protect and enforce our intellectual property rights, a
loss of which could harm our business.
We depend upon our proprietary technology, and rely on a combination of
patent, copyright and trademark laws, trade secrets, confidentiality procedures
and contractual provisions to protect it. We currently do not have any issued
United States or foreign patents, but we have applied for U.S. patents. It is
possible that a patent will not be issued from our currently pending patent
applications or any future patent application we may file. We have also
restricted customer access to our source code and require all employees to enter
into confidentiality and invention assignment agreements. Despite our efforts to
protect our proprietary technology, unauthorized parties may attempt to copy
aspects of our products or to obtain and use information that we regard as
proprietary. In addition, the laws of some foreign countries do not protect our
proprietary rights as effectively as the laws of the United States, and we
expect that it will become more difficult to monitor use of our products as we
increase our international presence. In addition, third parties may claim that
our products infringe theirs.
Our failure to deliver defect-free software could result in greater losses and
harmful publicity.
Our software products are complex and have in the past and may in the future
contain defects or failures that may be detected at any point in the product's
life. We have discovered software defects in the past in some of our products
after their release. Although past defects have not had a material effect on our
results of operations, in the future we may experience delays or lost revenue
caused by new defects. Despite our testing, defects and errors may still be
found in new or existing products, and may result in delayed or lost revenues,
loss of market share, failure to achieve acceptance, reduced customer
satisfaction, diversion of development resources and damage to our reputation.
As has occurred in the past, new releases of products or product enhancements
may require us to provide additional services under our maintenance contracts to
ensure proper installation and implementation. Moreover, third parties may
develop and spread computer viruses that may damage the functionality of our
software products. Any damage to or interruption in the performance of our
software could also harm our business.
Defects in our products may result in customer claims against us that could
cause unanticipated losses.
Because customers rely on our products for business critical processes,
defects or errors in our products or services might result in tort or warranty
claims. It is possible that the limitation of liability provisions in our
contracts will not be effective as a result of existing or future federal, state
or local laws or ordinances or unfavorable judicial decisions. We have not
experienced any product liability claims like this to date, but we could in the
future. Further, although we maintain errors and omissions insurance, this
insurance coverage may not be adequate to cover us. A successful product
liability claim could harm our business. Even defending a product liability
suit, regardless of its merits, could harm our business because it entails
substantial expense and diverts the time and attention of key management
personnel.
Because the market for our products is new, we do not know whether existing and
potential customers will purchase our products in sufficient quantity for us to
achieve profitability.
The market for web content management software in which we sell is new and
rapidly evolving. We expect that we will continue to need intensive marketing
and sales efforts to educate prospective clients about the uses and benefits of
our products and services. Various factors could inhibit the growth of the
market, and market acceptance of our products and services. In particular,
potential customers that have
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invested substantial resources in other methods of conducting business over the
Internet may be reluctant to adopt a new approach that may replace, limit or
compete with their existing systems. We cannot be certain that a viable market
for our products will emerge, or if it does emerge, that it will be sustainable.
If widespread Internet adoption does not continue, or if the Internet cannot
accommodate continued growth, our business will be harmed because it depends on
growth in the use of the Internet.
Acceptance of our products depends upon continued adoption of the Internet
for commerce. As is typical in the case of an emerging industry characterized
by rapidly changing technology, evolving industry standards and frequent new
product and service introductions, demand for and acceptance of recently
introduced products and services are subject to a high level of uncertainty.
To the extent that businesses do not consider the Internet a viable commercial
medium, our customer base may not grow. In addition, critical issues
concerning the commercial use of the Internet remain unresolved and may affect
the growth of Internet use. The adoption of the Internet for commerce,
communications and access to content, particularly by those who have
historically relied upon alternative methods, generally requires understanding
and accepting new ways of conducting business and exchanging information. In
particular, companies that have already invested substantial resources in
other means of conducting commerce and exchanging information may be
particularly reluctant or slow to adopt a new, Internet-based strategy that may
render their existing infrastructure obsolete. If Internet use develops more
slowly than expected, our business may be seriously harmed.
To the extent that there is an increase in Internet use, an increase in
frequency of use or an increase in the required bandwidth of users, the Internet
infrastructure may not be able to support the demands placed upon it. In
addition, the Internet could lose its viability as a commercial medium due to
delays in development or adoption of new standards or protocols required to
handle increased levels of Internet activity. Changes in, or insufficient
availability of, telecommunications or similar services to support the Internet
also could result in slower response times and could adversely impact use of the
Internet generally. If use of the Internet does not continue to grow or grows
more slowly than expected, or if the Internet infrastructure, standards,
protocols or complementary products, services or facilities do not effectively
support any growth that may occur, our business would be seriously harmed.
There is substantial risk that future regulations could be enacted that either
directly restrict our business or indirectly impact our business by limiting the
growth of Internet commerce.
As Internet commerce evolves, we expect that federal, state or foreign
agencies will adopt new legislation or regulations covering issues such as user
privacy, pricing, content and quality of products and services. If enacted,
these laws, rules or regulations could indirectly harm us to the extent that
they impact our customers and potential customers. We cannot predict if or how
any future legislation or regulations would impact our business. Although many
of these regulations may not apply to our business directly, we expect that laws
regulating or affecting commerce on the Internet could indirectly harm our
business.
We have various mechanisms in place to discourage takeover attempts, which might
tend to suppress our stock price.
Provisions of our certificate of incorporation and bylaws that may
discourage, delay or prevent a change in control include:
. we are authorized to issue "blank check" preferred stock, which could be
issued by our board of directors to increase the number of outstanding
shares and thwart a takeover attempt;
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. we provide for the election of only one-third of our directors at each
annual meeting of stockholders, which slows turnover on the board of
directors;
. we limit who may call special meetings of stockholders;
. we prohibit stockholder action by written consent, so all stockholder
actions must be taken at a meeting of our stockholders; and
. we require advance notice for nominations for election to the board of
directors or for proposing matters that can be acted upon by stockholders
at stockholder meetings.
In addition to the aforementioned provisions, we are seeking stockholder
approval of an amendment to our Third Amended and Restated Certificate of
Incorporation at the special meeting of our stockholders to be held on December
12, 2000. If approved by our stockholders, this amendment would increase the
authorized number of shares of common stock issuable by Interwoven from 100
million to 500 million shares. While it is not the purpose of the proposal to
discourage, delay or prevent takeover attempts, it is possible that it may have
that effect, alone or in combination with other provisions of our certificate of
incorporation or bylaws. For example, if there is an unsolicited tender offer
with respect to Interwoven's outstanding shares, having more shares available
for issuance might make that tender offer more difficult if we were to issue
additional shares to third parties.
Use of Proceeds
We will not receive any proceeds from the sale of the common stock by the
selling stockholders under this prospectus.
Dividend Policy
We have never paid any cash dividends on our capital stock. We anticipate
that we will continue to retain any earnings for use in the operation of our
business and we do not currently intend to pay dividends.
11
<PAGE>
Selling Stockholders
The following table sets forth information with respect to the selling
stockholders who received shares of our common stock in our acquisition of Ajuba
Solutions, Inc. in October 2000 and of Metacode Technologies, Inc. in November
2000 and the shares of our common stock that they may offer under this
prospectus. Except for the relationships described below, the selling
stockholders have not had any other position, office or other material
relationship with us or any of our predecessors or affiliates.
The share information provided in the table below is based on information
provided to us by the selling stockholders on or about November 22, 2000. We
calculated beneficial ownership according to Rule 13d-3 under the Securities
Exchange Act. Each selling stockholder owns less than 1% of our outstanding
Common Stock, based on 51,141,497 shares of common stock outstanding as of
November 21, 2000. We may update, amend or supplement this prospectus from time
to time to update the disclosure in this section.
Subject to the terms of our merger agreement with Ajuba Solutions, Inc., we
will hold in escrow 20,633 shares that are beneficially owned by the selling
stockholders that are former shareholders of Ajuba Solutions, Inc. until October
31, 2001, as collateral for indemnification obligations set forth in that
agreement. In addition, subject to the terms of our merger agreement with
Metacode Technologies, Inc., we will hold in escrow 154,588 shares that are
beneficially owned by the selling stockholders that are former shareholders of
Metacode Technologies, Inc. until November 1, 2001, as collateral for
indemnification obligations set forth in that agreement. Subject to limited
exceptions, the shares subject to escrow may not be sold or transferred without
our consent. These shares will be released to the former Ajuba Solutions, Inc.
and Metacode Technologies, Inc. stockholders on October 31, 2001 and November 1,
2001, respectively, less any shares returned to Interwoven to cover damages
incurred by Interwoven or subject to Interwoven claims for damages still
outstanding at that date.
The selling stockholders from time to time may offer and sell any or all of
their shares that are covered by this prospectus. Because the selling
stockholders are not obligated to sell their shares, and because the selling
stockholders may also acquire publicly traded shares of our common stock, we
cannot estimate how many shares of the selling stockholders will beneficially
own after this offering.
<TABLE>
<CAPTION>
Number of Total shares
shares owned before that may be
Name this offering offered
---- ------------------- ------------
<S> <C> <C>
Former Shareholders of Metacode Technologies, Inc.:
The Schatz Revocable Trust 392,934 337,126
The Patients In Need Foundation 153,240 153,240
*Chris V. Rathe 87,849 75,372
Joel and Diane Schatz 63,276 54,289
John W. Hellwig 59,535 51,080
Paul Hawken 38,004 32,604
Oneida Tribe of Indians of Wisconsin 17,860 15,323
Ray Picard 16,669 11,025
*Paul Kim 16,372 14,047
Vladimir A. Serdiuk 14,883 12,769
Robert H. Roehl 11,907 10,216
Herbert and Elaine Kwok 11,311 9,704
Daniel Ortega 9,674 8,300
*George Sollman 8,879 7,618
*Barry Richman 7,739 6,640
Gray Cary Ware & Freidenrich LLP 7,332 6,291
Andrei S. Kolesnikov 5,953 5,107
James Yung & Agnes Kwok 5,358 4,597
Paul O'Leary 5,239 4,494
</TABLE>
12
<PAGE>
<TABLE>
<S> <C> <C>
The Bulitt Foundation 5,209 4,469
Silicon Valley Bank 4,977 4,270
*Allen Brown 4,316 3,702
Elaine Seiler Living Trust 4,107 3,524
*Mark Freeland 3,959 3,393
NeeUnee Consulting Partnership 3,869 3,319
*Roy Grant 3,796 3,257
Joel Schatz 3,790 3,252
Richard E. Aubin 3,720 3,192
Habib Sadeghi-Azar 3,572 3,065
Ahmad and Mitra Ghaffarian 3,572 3,065
Catherine Cochran 3,572 3,065
Michael Baldwin 3,572 3,065
Charles E. Bascom 1991 Trust 3,572 3,065
Robert P. Inches 3,572 3,065
Cameron Truesdell 3,119 2,676
Dale Larson 3,119 2,676
Catherine E. Roehl 2,976 2,553
Fariborz Pourabbas 2,619 2,247
*Fraser Smith 2,589 2,221
Cameron and Dondi Truesdell 2,440 2,093
Felicia Kwok 1,786 1,532
Kevin and Jacqueline Charbeneau 1,786 1,532
Marie and George Chow 1,786 1,532
Ali Sadeghi 1,786 1,532
Majid Harirchi and Katayoun Harrirchi 1,786 1,532
Farshid Oshidari 1,786 1,532
John and Mina Aryanpur 1,786 1,532
Mehraban Keyani and Perimah Mehrrostami 1,786 1,532
Fereidoon Sohrabian 1,786 1,532
*Kaj Edholm 1,483 1,272
*William J. Wohler 1,377 1,181
James Dow 1,333 1,144
John S. Majnarich & Wanda J. Majnarich Revocable Trust 1,333 1,144
Janet J. Rathe 1,333 1,144
Mo Stevenson 1,333 1,144
*Barbara Norgard 1,289 1,106
*Theresa Rossiter 1,198 1,028
*John Steinhart 1,190 1,021
Marc Baber 1,116 957
Karsten Rasmussen 1,116 957
Gene F. Straube Living Trust 983 843
Andrew Thompson 944 810
Mike Matthews 944 810
Frederick and Shelia Hoar 944 810
*Marian McNamee 893 766
Jim Selman 893 766
Darryl Kwok 893 766
Irene Gockson 893 766
Ennio S. Stacchetti Revocable Trust U/A/D 8/7/98 893 766
Robert Eye 893 766
Mark Ciotek 755 648
William Lyon 706 606
Farimah S. and Vahid Ghodsi 595 510
Seyed Abdoulhamid Ghodsi 595 510
Masoud F. Saedi 595 510
John Kao 595 510
Gerard Mosseri Marlio 595 510
Shalini and Ramachandran Krishnaswamy 595 510
Mansour Moussavian 595 510
Muller Family Trust Dated 4/26/93 595 510
</TABLE>
13
<PAGE>
<TABLE>
<S> <C> <C>
Global Health Asia Limited 595 510
John Garn 595 510
Henry Dakin 595 510
Pacifico Land Corporation 595 510
Charles E. Bascom 535 459
Lulworth Partners 535 459
Battery Street Ventures 496 426
Tansy Young 357 306
*Terry Rossiter 334 287
*Leigh Culpepper 330 283
Patrice Winchester 297 255
*James G. Leathers, Jr. 297 255
*Stephen J. Atwater 297 255
William D. Cone 297 255
John Aryanpur 297 255
The Karr Family 1982 Trust 297 255
*Zahra Mahloudhji 284 244
*James R. Voigt 119 102
Elizabeth Karr 99 85
Cynthia Karr 99 85
</TABLE>
<TABLE>
<CAPTION>
Number of Total shares
shares owned before that may be
Name the offering offered
---- ------------------- ------------
<S> <C> <C>
Former Shareholders of Ajuba Solutions, Inc.:
Accel VI L.P 54,355 48,916
*John K. Ousterhout 37,473 31,085
Lighthouse Capital Partners III, L.P. 24,879 22,390
*Tom Thomas 23,634 21,270
*Gary F. Hromadko 12,792 11,512
Accel Internet Fund II L.P. 6,945 6,249
Sarah E. Daniels 5,712 5,141
Andreas V. Bechtolsheim 5,610 5,047
*Scott Stanton 5,280 4,355
Accel Investors '98 L.P. 4,607 4,146
*Brent Welch 3,168 2,554
Chen Family Trust Dated January 15, 1993 2,040 1,835
Ray Johnson 1,980 1,782
*Melissa Chawla 1,320 1,064
John Kent Chin 1,020 917
Susan Wong 1,020 917
*Bryan Surles 946 851
Accel Keiretsu VI, L.P. 868 781
*Lee Bernhard 845 649
*Carole Hayworth 825 742
Linda Giampa 628 565
Berry Kercheval 594 363
Kimberley Yates 548 286
*Scott Redman 528 288
*Foster Curry 426 383
Suresh Sastry 396 356
*Joe Sammut 396 296
*Al Borr 347 233
Jennifer Hom 330 179
*Jeff Hobbs 330 167
*Sven Delmas 330 160
Hillsman & Palefsky McGuinn 269 242
*Paul Gardiner 264 237
*Mariam Tariq 264 137
Peter Key 264 90
David A. Patterson 255 229
R. Randolph Scott 255 229
Peter Halper 248 222
</TABLE>
14
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Tom Von Karl 248 222
Michael Siebrass 248 147
*Joseph M. Eyre 234 210
*Thomas Lofgren 198 178
John Doumani 198 107
*Michael Thomas 198 107
*Karin Brown 198 103
*Sandeep Tamharkar 198 88
Robert Gunn 185 68
*Nicolette ter Rele 172 154
Mel Connet 165 148
*Eric Melski 158 82
*Shawn K. Kielty 158 67
*Jennifer Trent 158 67
Ken Jones 157 141
*Linda Ford 139 124
*JGK and Associates 132 118
*Daniel Gerard Kuchler 119 45
*Ellen Olson 106 95
Allen L. Morgan 102 91
Julie Franklin 99 89
Steve Hamilton 95 85
Katie Wiederholt 86 77
Corinne A. Forti 66 59
*Nina A. Gass 40 35
*Randy Williams 36 32
Stacey Yates 22 19
Perlin/Morales Partners Search 21 18
John Stump 7 5
----------- --------- ---------
Total 1,268,904 1,110,117
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
*This person is an employee or consultant of Interwoven.
15
<PAGE>
Plan of Distribution
The selling stockholders and their permitted transferees will be offering
and selling all shares offered and sold with this prospectus. We will not
receive any of the proceeds of the sales of these shares. Offers and sales of
shares made with this prospectus must comply with the terms of the merger
agreements we entered into with Ajuba Solutions, Inc. and Metacode Technologies,
Inc. However, selling stockholders may resell all or a portion of their shares
in open market transactions in reliance upon available exemptions under the
Securities Act, provided they meet the criteria and conform to the requirements
of one of these exemptions.
Who may sell and applicable restrictions. Shares may be offered and sold
directly by the selling stockholders and their permitted transferees from time
to time. The selling stockholders could transfer, devise or gift shares by other
means.
Alternatively, the selling stockholders from time to time may offer the
shares through brokers, dealers or agents that may receive compensation in the
form of discounts, concessions or commissions from the selling stockholders
and/or the purchasers of the shares for whom they may act as agent. In effecting
sales, broker-dealers that are engaged by the selling stockholders may arrange
for other broker-dealers to participate. The selling stockholders and any
brokers, dealers or agents who participate in the distribution of the securities
may be deemed to be underwriters, and any profits on the sale of the securities
by them and any discounts, commissions or concessions received by any brokers,
dealers or agents might be deemed to be underwriting discounts and commissions
under the Securities Act. To the extent the selling stockholders may be deemed
to be underwriters, they may be subject to statutory liabilities, including, but
not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5
under the Exchange Act.
In addition, some of the selling stockholders are venture capital funds,
corporations or trusts which may, in the future, distribute their shares to
their trust beneficiaries, respectively, which distributees may likewise
distribute further such shares. Those shares may be sold by those partners,
members, stockholders or trust beneficiaries, or by any of their respective
distributees, pursuant to this prospectus.
Prospectus delivery. Because selling stockholders may be deemed to be
underwriters within the meaning of Section 2(11) of the Securities Act, they
will be subject to the prospectus delivery requirements of the Securities Act.
At any time a particular offer of the securities is made, a revised prospectus
or prospectus supplement, if required, will be distributed which will set forth:
. the name of the selling stockholder and of any participating
underwriters, broker-dealers or agents;
. the aggregate amount and type of securities being offered;
. the price at which the securities were sold and other material terms of
the offering;
. any discounts, commissions, concessions and other items constituting
compensation from the selling; stockholders and any discounts,
commissions or concessions allowed or re-allowed or paid to dealers; and
. that the participating broker-dealers did not conduct any investigation
to verify the information in this prospectus or incorporated in this
prospectus by reference.
16
<PAGE>
The prospectus supplement or a post-effective amendment will be filed with
the Securities and Exchange Commission to reflect the disclosure of additional
information with respect to the distribution of the securities.
Manner of sales. The selling stockholders will act independently of us in
making decisions with respect to the timing, manner and size of each sale. Sales
may be made over the Nasdaq National Market or the over-the-counter market. The
shares may be sold at then prevailing market prices, at prices related to
prevailing market prices or at negotiated prices. The selling stockholders may
also resell all or a portion of the shares in open market transactions in
reliance upon Rule 144 under the Securities Act, provided that the shares meet
the criteria and conform to the requirements of this rule. The selling
stockholders may decide not to sell any of the shares offered under this
prospectus, and they may transfer, devise or gift these shares by other means.
The shares may be sold according to one or more of the following methods:
. a block trade in which the broker or dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
. purchases by a broker or dealer as principal and resale by the broker or
dealer for its account as allowed under this prospectus;
. ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
. an exchange distribution under the rules of the exchange;
. face-to-face transactions between sellers and purchasers without a
broker-dealer; and
. by writing options.
Some persons participating in this offering may engage in transactions that
stabilize, maintain or otherwise affect the price of the securities, including
the entry of stabilizing bids or syndicate covering transactions or the
imposition of penalty bids. The selling stockholders and any other person
participating in a distribution will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder including Regulation M.
This regulation may limit the timing of purchases and sales of any of the
securities by the selling stockholders and any other person. The anti-
manipulation rules under the Exchange Act may apply to sales of securities in
the market and to the activities of the selling stockholders and their
affiliates. Furthermore, Regulation M of the Exchange Act may restrict the
ability of any person engaged in the distribution of the securities to engage in
market-making activities with respect to the particular securities being
distributed for a period of up to five business days before the distribution.
All of the foregoing may affect the marketability of the securities and the
ability of any person or entity to engage in market-making activities with
respect to the securities.
Hedging and other transactions with broker-dealers. In connection with
distributions of the securities, the selling stockholders may enter into hedging
transactions with broker-dealers. In connection with these transactions, broker-
dealers may engage in short sales of the registered securities in the course of
hedging the positions they assume with selling stockholders. The selling
stockholders may also sell securities short and redeliver the securities to
close out short positions. The selling stockholders may also enter into option
or other transactions with broker-dealers which require the delivery to the
broker-dealer of the registered securities. The broker-dealer may then resell or
transfer these securities under this prospectus. A selling stockholder may also
loan or pledge the registered securities to a broker-dealer and the broker-
17
<PAGE>
dealer may sell the securities so loaned or, upon a default, the broker-dealer
may effect sales of the pledged securities under this prospectus.
Expenses associated with registration. We have agreed to pay the expenses of
registering the shares under the Securities Act, including registration and
filing fees, printing and duplication expenses, administrative expenses and
legal and accounting fees. Each selling stockholder will pay its own brokerage
and legal fees, if any.
Indemnification and contribution. In the merger agreement, we and the
selling stockholders have agreed to indemnify or provide contribution to each
other and specified other persons against some liabilities in connection with
the offering of the shares, including liabilities arising under the Securities
Act. The selling stockholders may also agree to indemnify any broker-dealer or
agent that participates in transactions involving sales of the shares against
some liabilities, including liabilities arising under the Securities Act.
Suspension of this offering. We may suspend the use of this prospectus if we
learn of any event that causes this prospectus to include an untrue statement of
a material fact or omit to state a material fact required to be stated in the
prospectus or necessary to make the statements in the prospectus not misleading
in the light of the circumstances then existing. If this type of event occurs, a
prospectus supplement or post-effective amendment, if required, will be
distributed to each selling stockholder.
Legal Matters
Fenwick & West LLP, Palo Alto, California, will provide us with an opinion
as to legal matters in connection with the shares of common stock that may be
offered with this prospectus.
Experts
The financial statements incorporated in this Prospectus by reference to the
Annual Report on Form 10-K for the year ended December 31, 1999, have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
Forward-Looking Statements
This prospectus contains forward-looking statements within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act relating
to future events or financial results. These forward-looking statements include
statements indicating that we believe, we expect or we anticipate that events
may occur or trends may continue, and similar statements relating to future
events or financial results. These forward-looking statements are subject to
material risks and uncertainties as indicated under the caption "Risk Factors."
Actual results could vary materially as a result of a number of factors
including those disclosed in "Risk Factors" and elsewhere in this prospectus.
Where You Can Find More Information
The following documents that we have filed with the Securities and Exchange
Commission are incorporated into this prospectus by reference:
. the registration statement on Form S-3 of which this prospectus is a
part, and the exhibits filed with this registration statement and
incorporated into the registration statement by reference
18
<PAGE>
. our annual report on Form 10-K for the fiscal year ended December 31,
1999
. the registration of our common stock on Form 8-A filed on September 20,
1999
. all other reports filed under Section 13(a) or 15(d) of the Exchange Act
since December 31, 1999
. all other information that we file with the Commission under to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and before the termination of this offering
To the extent that any statement in this prospectus is inconsistent with any
statement that is incorporated by reference, the statement in this prospectus
shall control. The incorporated statement shall not be deemed, except as
modified or superseded, to constitute a part of this prospectus or the
registration statement.
Because we are subject to the informational requirements of the Exchange
Act, we file reports and other information with the Commission. Reports,
registration statements, proxy and information statements and other information
that we have filed can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain copies of this material from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at rates prescribed by the Commission. The public may obtain information
on the operation of the Public Reference Room by calling the Commission at
1-800-SEC-0330. The Commission also maintains a World Wide Web site that
contains reports, proxy and information statements and other information that is
filed electronically with the Commission. This web site can be accessed at
http://www.sec.gov.
We have filed with the Commission a registration statement on Form S-3 under
the Securities Act with respect to the Common Stock offered under this
prospectus. This prospectus does not contain all of the information in the
registration statement, parts of which we have omitted, as allowed under the
rules and regulations of the Commission. You should refer to the registration
statement for further information with respect to us and our Common Stock.
Statements contained in this prospectus as to the contents of any contract or
other document are not necessarily complete and, in each instance, we refer you
to the copy of each contract or document filed as an exhibit to the registration
statement. Copies of the registration statement, including exhibits, may be
inspected without charge at the Commission's principal office in Washington,
D.C., and you may obtain copies from this office upon payment of the fees
prescribed by the Commission.
We will furnish without charge to each person to whom a copy of this
prospectus is delivered, upon written or oral request, a copy of the information
that has been incorporated by reference into this prospectus (except exhibits,
unless they are specifically incorporated by reference into this prospectus).
You should direct any requests for copies to Interwoven, Inc., 1195 W. Fremont
Ave., Sunnyvale, California 94087, Attention: Stock Administrator, telephone:
(408) 774-2000.
19
<PAGE>
================================================================================
INTERWOVEN, INC.
1,110,117 Shares of
Common Stock
________________
PROSPECTUS
, 2000
________________
You should rely only on the information contained in or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information. The selling stockholders are offering to sell, and
seeking offers to buy, shares of common stock only in jurisdictions where offers
and sales are permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or of any sale of common stock.
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses payable by the
Registrant in connection with the sale and distribution of the securities being
registered hereby. Normal commission expenses and brokerage fees are payable
individually by the selling stockholders. All amounts are estimated except the
Securities and Exchange Commission registration fee.
Securities and Exchange Commission registration fee $20,112
Accounting fees and expenses 10,000
Legal fees and expenses 30,000
Miscellaneous 11,888
-------
Total $72,000
=======
ITEM 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act.
As permitted by the Delaware General Corporation Law, the Registrant's
Certificate of Incorporation includes a provision that eliminates the personal
liability of its directors for monetary damages for breach of fiduciary duty as
a director, except for liability:
. for any breach of the director's duty of loyalty to the Registrant or
its stockholders,
. for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law,
. under section 174 of the Delaware General Corporation Law (regarding
unlawful dividends and stock purchases), or
. for any transaction from which the director derived an improper personal
benefit.
As permitted by the Delaware General Corporation Law, the Registrant's
Bylaws provide that:
. the Registrant is required to indemnify its directors and officers to
the fullest extent permitted by the Delaware General Corporation Law,
subject to certain very limited exceptions,
. the Registrant may indemnify its other employees and agents as set forth
in the Delaware General Corporation Law,
. the Registrant is required to advance expenses, as incurred, to its
directors and officers in connection with a legal proceeding to the
fullest extent permitted by the Delaware General Corporation Law,
subject to certain very limited exceptions, and
. the rights conferred in the Bylaws are not exclusive.
II-1
<PAGE>
The Registrant has entered into Indemnity 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 Amended and Restated Certificate of Incorporation and to
provide additional procedural protections. 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.
The indemnification provisions in the Registrant's Amended and Restated
Certificate of Incorporation, Bylaws and the Indemnity Agreements entered or to
be entered into between the Registrant and each of its directors and officers
may be 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 17.
The following documents are incorporated by reference:
Document
--------
1. Third Amended and Restated Certificate of Incorporation (see Exhibit
3.01).
2. Form of Indemnity Agreement entered into between the registrant and
each of its directors and executive officers (incorporated by
reference to Exhibit 10.01 to the registrant's registration statement
on Form S-1 (File No. 333-83779) declared effective by the Commission
on October 7, 1999).
In addition, the registrant has entered into various merger agreements and
related registration rights agreements in connection with its acquisitions of
and mergers with various companies under which the parties to those agreements
have agreed to indemnify the registrant and its directors, officers, employees
and controlling persons against specified liabilities, including liabilities
arising under the Securities Act, the Exchange Act or other federal or state
laws.
II-2
<PAGE>
Item 16. Exhibits.
The following exhibits are filed with this registration statement or
incorporated into this registration statement by reference:
Exhibit
Number Exhibit Title
------- -------------
3.01 The Registrant's Third Amended and Restated Certificate of
Incorporation filed with the Delaware Secretary of State on
October 14, 1999 (incorporated by reference to Exhibit 3.03 to
the Registrant's registration statement on Form S-1, File No.
333-92943, declared effective by the Commission on January 26,
2000).
3.02 The Registrant's Restated Bylaws, as amended, as adopted on
September 20, 1999 (incorporated by reference to Exhibit 3.04 to
the Registrant's registration statement on Form S-1, File No.
333-83779, declared effective by the Commission on October 7,
1999).
4.01 Form of certificate of the Registrant's Common Stock
(incorporated by reference to Exhibit 4.01 to the Registrant's
registration statement on Form S-1, File No. 333-83779, declared
effective by the Commission on October 7, 1999).
4.02 Agreement and Plan of Reorganization, dated October 19, 2000, by
and among Interwoven, Inc. and Ajuba Solutions, Inc.
(incorporated by reference to Exhibit 2.01 to Registrant's
current report on Form 8-K, File No. 000-27389, filed with the
Commission on November 13, 2000).
4.03 Agreement and Plan of Reorganization, dated October 20, 2000, by
and among Interwoven, Inc. and Metacode Technologies, Inc.
(incorporated by reference to Exhibit 2.02 to Registrant's
current report on Form 8-K, File No. 000-27389, filed with the
Commission on November 13, 2000).
5.01 Opinion of Fenwick & West LLP regarding the legality of the
shares of common stock being registered.
23.01 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.02 Consent of Fenwick & West LLP (included in Exhibit 5.01).
24.01 Power of attorney (see pg. II-6 of this registration statement).
II-3
<PAGE>
ITEM 17. Undertakings.
The 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:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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; and
(c) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to the information in the registration
statement;
provided, however, that paragraphs (1)(a) and (1)(b) above 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 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered in
the registration statement, and the offering of the securities at
that time shall be deemed to be the initial bona fide offering of
those securities.
(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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 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 in the registration statement, and the offering of the
securities at that time shall be deemed to be the initial bona fide
offering of those securities.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
discussed in Item 6 hereof, or otherwise, the registrant has been
advised that in the opinion of the Commission this indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. If a claim for indemnification against
these 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 the director, officer or
controlling person in connection with the securities being
registered under this registration statement, 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 indemnification by it is against public policy
as expressed in the Securities Act and will be governed by the final
adjudication of this issue.
II-4
<PAGE>
(6) That, for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as
part of a registration statement in reliance upon Rule 430A and
contained in the form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of the registration statement as of the time it
was declared effective.
(7) For purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus
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.
II-5
<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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Sunnyvale, State of California, on this 22nd day of November,
2000.
INTERWOVEN, INC.
By: /s/ David M. Allen
----------------------------------------------
David M. Allen
Senior Vice President, Chief Financial Officer
and Secretary
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Martin W. Brauns and David M. Allen and each of
them, his 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 (including post-effective amendments) to this registration statement,
and to sign any registration statement for the same offering covered by this
registration statement that is to be effective upon filing pursuant to Rule
462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, and to file the same, with all exhibits thereto and all
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 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
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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.
<TABLE>
<S> <C> <C>
Signature Title Date
--------- ----- ----
Principal Executive Officer:
/s/ Martin W. Brauns President, Chief Executive November 22, 2000
-------------------- Officer and Director
Martin W. Brauns
Principal Financial Officer and
Principal Accounting Officer:
/s/ David M. Allen Senior Vice President and November 22, 2000
------------------ Chief Financial Officer
David M. Allen
</TABLE>
II-6
<PAGE>
Additional Directors:
Director
_________________________
Ronald E.F. Codd
/s/ Kathryn C Gould Director November 22, 2000
_________________________
Kathryn C. Gould
/s/ Peng T. Ong Chairman November 22, 2000
_________________________
Peng T. Ong
Director
_________________________
Mark C. Thompson
/s/ Anthony Zingale Director November 22, 2000
_________________________
Anthony Zingale
II-7
<PAGE>
Exhibit Index
Exhibit
Number Exhibit Title
------- -------------
5.01 Opinion of Fenwick & West LLP regarding the legality of the
shares of common stock being registered.
23.01 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.02 Consent of Fenwick & West LLP (included in Exhibit 5.01).
24.01 Power of attorney (see pg. II-6 of this registration
statement).
II-3
