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As filed with the Securities and Exchange Commission on September 26, 2000
Registration No. 333-_____
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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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INTERWOVEN, INC.
(Exact Name of Registrant as Specified in its Charter)
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<S> <C>
Delaware 77-0523543
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
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1195 W. Fremont Avenue
Sunnyvale, California 94087
(Address of Principal Executive Offices)
2000 Stock Incentive Plan
(Full Title of the Plan)
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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 Agent for Service)
----------------
Copies to:
Horace L. Nash, Esq.
William L. Hughes, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
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===================================================================================================================================
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Registered Price Per Share Aggregate Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 4,000,000(1) $102.625(2) $410,500,000(2) $108,372(3)
===================================================================================================================================
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(1) Representing 4,000,000 additional shares available for grant under
Registrant's 2000 Stock Incentive Plan.
(2) Estimated as of September 26, 2000 pursuant to Rule 457(c) solely for the
purpose of calculating the registration fee.
(3) Fee calculated pursuant to Section 6(b) of the Securities Act of 1933.
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INTERWOVEN, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I: INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
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Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act") and the
Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information
------ -----------------------------------------------------------
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with Rule
428 under the Securities Act and the Note to Part I of Form S-8.
PART II: 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 latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or the latest prospectus filed pursuant to Rule 424(b)
under the Securities Act that contains audited financial statements
for the Registrant's latest fiscal year for which such statements have
been filed;
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual
report or prospectus referred to in (a) above; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the
Commission under Section 12 of the Exchange Act on September 20, 1999,
including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered 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
the filing of such documents.
Item 4. Description of Securities
------ -------------------------
Not applicable.
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Item 5. Interests of Named Experts and Counsel
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The validity of the issuance of the shares of Common Stock offered hereby
will be passed upon for the Registrant by Fenwick & West LLP, of Palo Alto,
California. Members of the firm of Fenwick & West LLP own an aggregate of
approximately 7,000 shares of Common Stock of the Registrant.
Item 6. 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.
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
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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 9.
Item 7. Exemption From Registration Claimed
------ -----------------------------------
Not applicable.
Item 8. Exhibits
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4.01 Interwoven, Inc. 2000 Stock Incentive Plan, as amended September
7, 2000.
4.02 Forms of 2000 Stock Incentive Plan Stock Option Agreement and
Stock Option Exercise Agreement (incorporated by reference from
Exhibit 4.03 to the Registrant's Registration Statement on Form
S-8, Registration No. 333-39914).
4.03 Registrant's Third Amended and Restated Certificate of
Incorporation filed with the Secretary of State of Delaware on
October 14, 1999 (incorporated by reference from Exhibit 3.03 to
the Registrant's Registration Statement on Form S-1, Registration
No. 333-92943, declared effective by the Commission on January 26,
2000).
4.04 Registrant's Restated Bylaws, as amended (incorporated by
reference from Exhibit 3.04 to the Registrant's Registration
Statement on Form S-1, Registration No. 333-83779, declared
effective by the Commission on October 7, 1999).
4.05 Form of Certificate for Registrant's common stock (incorporated by
reference from Exhibit 4.01 to the Registrant's Registration
Statement on Form S-1, Registration No. 333-83779, declared
effective by the Commission on October 7, 1999).
5.01 Opinion of Fenwick & West LLP.
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 7).
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Item 9. Undertakings.
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The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in the 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 and 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 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)(i) and (1)(ii) above do not apply if the
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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 the 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
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the 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,
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officer or controlling person in connection with the securities being registered
hereby, the Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sunnyvale, State of California, on the 25th day of
September, 2000.
INTERWOVEN, INC.
By: /s/ David M. Allen
-------------------------------------
David M. Allen
Senior Vice President,
Chief Financial Officer and Secretary
POWER OF ATTORNEY
KNOW ALL MEN 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 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 (including post-effective amendments)
to this Registration Statement on Form S-8, 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 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 substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
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Signature Title Date
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<S> <C> <C>
Principal Executive Officer:
/s/ Martin W. Brauns President, Chief Executive Officer September 25, 2000
--------------------------------- and a Director
Martin W. Brauns
Principal Financial Officer and
Principal Accounting Officer:
/s/ David M. Allen Senior Vice President, September 25, 2000
--------------------------------- Chief Financial Officer and Secretary
David M. Allen
Additional Directors:
/s/ Peng T. Ong Director September 25, 2000
---------------------------------
Peng T. Ong
Director
---------------------------------
Ronald E.F. Codd
/s/ Kathryn C. Gould Director September 25, 2000
---------------------------------
Kathryn C. Gould
/s/ Mark C. Thompson Director September 25, 2000
---------------------------------
Mark C. Thompson
Director September 25, 2000
---------------------------------
Anthony Zingale
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EXHIBIT INDEX
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<CAPTION>
Exhibit
Number Exhibit Title
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<C> <S>
4.01 Interwoven, Inc. 2000 Stock Incentive Plan, as amended September
7, 2000.
5.01 Opinion of Fenwick & West LLP.
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 7).
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