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As filed with the Securities and Exchange Commission on November 2, 1999
Registration No. 333-________
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
___________________
INTERTRUST TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 52-1672106
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
4750 Patrick Henry Drive
Santa Clara, California 95054
(408) 222-6100
(Address of principal executive offices) (Zip Code)
___________________
INTERTRUST TECHNOLOGIES CORPORATION 1992 STOCK PLAN
INTERTRUST TECHNOLOGIES CORPORATION 1995 STOCK PLAN
INTERTRUST TECHNOLOGIES CORPORATION 1999 EQUITY INCENTIVE PLAN
INTERTRUST TECHNOLOGIES CORPORATION 1999 EMPLOYEE STOCK PURCHASE PLAN
INTERTRUST TECHNOLOGIES CORPORATION 1999 NON-EMPLOYEE DIRECTORS OPTION PLAN
OPTIONS GRANTED PURSUANT TO WRITTEN COMPENSATION AGREEMENTS
(Full title of the Plans)
___________________
Victor Shear
Chief Executive Officer and Chairman of the Board
INTERTRUST TECHNOLOGIES CORPORATION
4750 Patrick Henry Drive
Santa Clara, California 95054
(Name and address of agent for service)
(408) 222-6100
(Telephone number, including area code, of agent for service)
___________________
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<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) per Share (2) Price (2) Fee
- ----------------------------------- -------------- ----------------- ----------------- ------------
<S> <C> <C> <C> <C>
1992 Stock Plan
- -----------------------------------
Options 1,359,160 N/A N/A N/A
Common Stock (par value $0.001) 1,359,160 $18.00 $24,464,880 $6,801.24
1995 Stock Plan
- -----------------------------------
Options 5,092,972 N/A N/A N/A
Common Stock (par value $0.001) 5,092,972 $18.00 $91,673,496 $25,485.23
1999 Equity Incentive Plan
- -----------------------------------
Options 1,900,000 N/A N/A N/A
Common Stock (par value $0.001) 1,900,000 $18.00 $34,200,000 $9,507.60
1999 Employee Stock Purchase Plan
- ---------------------------------
Rights to Purchase 350,000 N/A N/A N/A
Common Stock (par value $0.001) 350,000 $18.00 $6,300,000 $1,751.40
1999 Non-Employee Directors Option Plan
- -----------------------------------------
Options 350,000 N/A N/A N/A
Common Stock (par value $0.001) 350,000 $18.00 $6,300,000 $1,751.40
Options Granted Pursuant to Written
Compensation Agreements
- -----------------------------------------
Options 250,000 N/A N/A N/A
Common Stock (par value $0.001) 250,000 $18.00 $4,500,000 $1,251.00
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1992 Stock Plan, 1995 Stock
Plan, 1999 Equity Incentive Plan, 1999 Employee Stock Purchase Plan, 1999
Non-Employee Directors Option Plan and Options Granted Pursuant to Written
Compensation Agreements by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of the
outstanding shares of Common Stock of InterTrust Technologies Corporation
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the fair market value
per share of Common Stock of InterTrust Technologies Corporation on
October 26, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
InterTrust Technologies Corporation (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"SEC"):
(a) The Registrant's prospectus filed with the SEC pursuant to Rule
424(b) of the Securities Act of 1933, as amended (the "1933
Act"), in connection with the Registration Statement No. 333-
84033 on Form S-1 filed with the SEC on July 29, 1999, together
with any and all amendments thereto, in which there is set forth
audited financial statements for the Registrant's fiscal years
ended December 31, 1997 and 1998; and
(b) The Registrant's Registration Statement No. 000-27287 on Form 8-A
filed with the SEC on September 9, 1999, together with all
amendments thereto, pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "1934 Act") in which there
is described the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and 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 into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not Applicable.
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 indemnification to directors and
officers in terms sufficiently broad to permit indemnification under limited
circumstances for liabilities, including reimbursement for expenses incurred,
arising under the 1933 Act. Article VI, Section 6.1 of Registrant's bylaws
provides for mandatory indemnification of Registrant's directors, officers, and
employees to the maximum extent permitted by the Delaware General Corporation
Law. Registrant's sixth amended and restated certificate of incorporation
provides that Registrant's officers and directors shall not be liable for
monetary damages for breach of the officers' or directors' fiduciary duty as
officers or directors to Registrant's stockholders and Registrant. This
provision in the sixth amended and restated certificate of incorporation does
not eliminate the officers' or directors' fiduciary duty, and, in appropriate
circumstances, equitable remedies like injunctive or other forms of non-monetary
relief will remain available under Delaware law. In addition, each officer or
director will continue to be subject to liability for breach of the officer's or
director's duty of loyalty to Registrant or Registrant's stockholders for acts
or omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
officer or director, and for payment of dividends or approval of stock
repurchases or redemptions that are unlawful under Delaware law. The provision
also does not affect an officer's or director's responsibilities under any other
law, like the federal securities laws or state or federal environmental laws.
Registrant has entered into indemnification agreements with Registrant's
officers and directors. The indemnification agreements provide Registrant's
officers and directors with further indemnification to the maximum extent
permitted by the Delaware General Corporation Law.
II-1
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Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item 8. Exhibits
--------
Exhibit Number Exhibit
- -------------- -------
4 Instrument Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-27287 on
Form 8-A, together with all amendments thereto, which is
incorporated herein by reference pursuant to Item 3(b) of
this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.
Item 9. Undertakings
------------
A. The undersigned Registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement (i) to include any prospectus required
by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this 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 this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
--------
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 SEC by the Registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference in this Registration
Statement; (2) that for the purpose of determining any liability under the 1933
Act 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 and (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 Registrant's 1992 Stock Plan, 1995 Stock Plan, 1999 Equity
Incentive Plan, 1999 Employee Stock Purchase Plan, 1999 Non-Employee Directors
Option Plan and Options Granted pursuant to Written Compensation Agreements.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnification provisions summarized in Item 6
or otherwise, the Registrant has been advised that, in the opinion of the SEC,
such indemnification is against public policy as expressed in the 1933 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 Registrant's of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the 1933 Act and will be governed by the
final adjudication of such issue.
II-2
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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 Santa Clara, State of California on this 1st
day of November, 1999.
INTERTRUST TECHNOLOGIES CORPORATION
By: /s/ Victor Shear
---------------------------------------------------
Victor Shear
Chairman of the Board and Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of InterTrust Technologies
Corporation, a Delaware corporation, do hereby constitute and appoint Victor
Shear and Edmund J. Fish, and either of them, the lawful attorneys-in-fact and
agents with full power and authority to do any and all acts and things and to
execute any and all instruments which said attorneys and agents, and either one
of them, determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any rules
or regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or either one of them, shall do or cause to
be done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Victor Shear Chairman of the Board and Chief Executive Officer November 1, 1999
- --------------------------------- (Principal Executive Officer)
Victor Shear
/s/ Erwin N. Lenowitz Vice Chairman of the Board, Chief Financial November 1, 1999
- --------------------------------------- Officer and Secretary (Principal Financial and
Erwin N. Lenowitz Accounting Officer)
President and Director ----------, 1999
- ---------------------------------
Peter van Cuylenburg
/s/ David Chance Executive Vice Chairman of the Board
- --------------------------------- November 1, 1999
David C. Chance
</TABLE>a
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<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Edmund J. Fish Director, Senior Operating Officer and Executive November 1, 1999
- --------------------------------------- Vice President, Corporate Development
Edmund J. Fish
/s/ David Van Wie Director and Senior Vice President of Research November 1, 1999
- ---------------------------------------
David Van Wie
/s/ Bruce Frederickson November 1, 1999
- --------------------------------------- Director
Bruce Frederickson
/s/ Satish K. Gupta November 1, 1999
- --------------------------------------- Director
Satish K. Gupta
</TABLE>
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EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
4 Instrument Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 000-27287 on Form 8-A,
together with all amendments thereto, which is incorporated
herein by reference pursuant to Item 3(b) of this Registration
Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.
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Exhibit 5
---------
November 2, 1999
InterTrust Technologies Corporation
4750 Patrick Henry Drive
Santa Clara, California 95054
Re: InterTrust Technologies Corporation (the "Company")
Registration Statement for
an aggregate of 9,302,132 Shares of Common Stock
Ladies and Gentlemen:
We refer to Registrant's registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of (i) 1,359,160
shares of Common Stock available for issuance under the Company's 1992 Stock
Plan, (ii) 5,092,972 shares of Common Stock available for issuance under the
Company's 1995 Stock Plan, (iii) 1,900,000 shares of Common Stock available
for issuance under the Company's 1999 Equity Incentive Plan, (iv) 350,000 shares
of Common Stock available for issuance under the Company's 1999 Employee Stock
Purchase Plan, (v) 350,000 shares of Common Stock available for issuance under
the Company's 1999 Non-Employee Directors Option Plan and (vi) 250,000 shares of
Common Stock available for issuance pursuant to Written Compensation Agreements.
We advise you that, in our opinion, when such shares have been issued and sold
pursuant to the applicable provisions of the 1992 Stock Plan, 1995 Stock Plan,
1999 Equity Incentive Plan, 1999 Employee Stock Purchase Plan, 1999 Non-Employee
Directors Option Plan and Written Compensation Agreements and in accordance with
the Registration Statement, such shares will be validly issued, fully paid and
nonassessable shares of the Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP
--------------------------------------------------
Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP
<PAGE>
Exhibit 23.2
------------
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8, pertaining to the 1992 Stock Plan, 1995 Stock Plan, 1999
Equity Incentive Plan, 1999 Employee Stock Purchase Plan and 1999 Non-Employee
Directors Option Plan and Options Granted Pursuant to Written Compensation
Agreements of InterTrust Technologies Corporation of our report dated February
19, 1999, except for Note 6, as to which the date is May 5, 1999, with respect
to the financial statements of InterTrust Technologies Corporation included in
its Registration Statement on Form S-1, filed with the Securities and Exchange
Commission.
Palo Alto, California /s/ Ernst & Young LLP
November 1, 1999
