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As filed with the Securities and Exchange Commission on October 2, 2000.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
the Securities Act of 1933
MERCURY INTERACTIVE CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 77-0224776
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(State of incorporation) (I.R.S. Employer Identification Number)
1325 Borregas Avenue
Sunnyvale, California 94089
(408) 822-5200
(Address, including zip code, of Registrant's principal executive offices)
2000 SUPPLEMENTAL STOCK OPTION PLAN
(Full title of the Plans)
Amnon Landan
Chairman of the Board, President and Chief Executive Officer
1325 Borregas Avenue
Sunnyvale, California 94089
(408) 822-5200
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Susan J. Skaer, Esq.
General Counsel Associates LLP
1891 Landings Drive
Mountain View, CA 94043
(650) 428-3900
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Proposed
Title of Maximum Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
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Common Stock,
$.002 par value............. 2,000,000 shares(1) $150.25(2) $300,500,000(2) $79,332
TOTAL..................... 2,000,000 shares(1) --- $300,500,000(2) $79,332
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</TABLE>
(1) This subtotal represents the sum of shares issuable upon exercise of
options that have not yet been granted under the 2000 Supplemental
Stock Option Plan, as of the date of this Registration Statement.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of
1933 solely for the purpose of calculating the total registration fee.
Computation based upon the average of the high and low prices of the
Common Stock as reported on the Nasdaq National Market on September 27,
2000 because the price at which the options to be granted in the future
may be exercised is not currently determinable.
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PART II:
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INFORMATION INCORPORATED BY REFERENCE
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The following documents and information heretofore filed with the
Securities and Exchange Commission are hereby incorporated by reference:
Item 3(a)
The Registrant's Annual Report on Form 10-K filed on March 22, 2000
pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the
"Exchange Act") which contains audited financial statements for the
Registrant's latest fiscal year ended December 31, 1999 for which such
statements have been filed.
Item 3(b)
All other reports filed by the Registrant pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
Annual Report on Form 10-K referred to in Item 3(a) above.
Item 3(c)
Items 1 and 2 of the Registrant's Registration Statement on Form 8-A filed
on September 9, 1993, as amended by Amendment No. 1 to Form 8-A filed on
October 28, 1993, pursuant to Section 12 of the Exchange Act and Items 1
and 2 of the Registrant's Registration Statement on Form 8-A filed on July
8, 1996, as amended by Amendment No. 1 to Form 8-A filed on April 2, 1999
and Amendment No. 2 to Form 8-A filed on May 22, 2000.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
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Item 4. DESCRIPTION OF SECURITIES
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Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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As permitted by the Delaware General Corporation Law, the Registrant has
included in its Certificate of Incorporation a provision to eliminate the
personal liability of its directors for monetary damages for breach or alleged
breach of their fiduciary duties as directors, subject to certain exceptions. In
addition, the By-laws of the Registrant provide that the Registrant is required
to indemnify its officers and directors under certain circumstances, including
those circumstances in which indemnification would otherwise be discretionary,
and the Registrant is required to advance expenses to its officers and directors
as incurred in connection with proceedings against them for which they may be
indemnified. The Registrant has entered into indemnification agreements with its
officers and directors containing provisions that are in some respects broader
than the specific indemnification provisions contained in the Delaware General
Corporation Law. The indemnification agreements may require the Registrant,
among other things, to indemnify such officers and directors against certain
liabilities that may arise by reason of their status or service as directors or
officers (other than liabilities arising from willful misconduct of a culpable
nature), to advance expenses incurred as a result of any proceeding against them
as to which they could be indemnified, and to obtain directors' and officers'
insurance if available on reasonable terms. At present, the Registrant is not
aware of any pending or threatened litigation or proceeding involving a
director, officer, employee or agent of the Registrant in which indemnification
would be required or permitted. The Registrant believes that its charter
provisions and indemnification agreements are necessary to attract and retain
qualified persons as directors and officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not Applicable.
Item 8 EXHIBITS
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Exhibit
Number Document
4.1 Mercury Interactive Corporation 2000 Supplemental Stock Option Plan.
5.1 Opinion of Counsel as to Legality of Securities being Registered.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see page 5).
Item 9. UNDERTAKINGS
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A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "Securities 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.
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act 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
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Mercury Interactive Corporation, a corporation organized and existing under the
laws of the State of Delaware, 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 October 2, 2000.
MERCURY INTERACTIVE CORPORATION
By: /s/ Sharlene Abrams
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Sharlene Abrams, Vice President of Finance and
Administration, Chief Financial Officer and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Amnon Landan, Sharlene Abrams and Susan J. Skaer,
jointly and severally, as his or her attorneys-in-fact, each with the power of
substitution, for him or her in any and all capacities, to sign any amendments
to this Registration Statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his or her substitute or substitutes, may 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.
SIGNATURES TITLE DATE
President,
Chief Executive Officer
and Chairman of the Board
/s/ Amnon Landan (Principal Executive Officer) October 2, 2000
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AMNON LANDAN
Vice President of
Finance and Administration
Chief Financial Officer
(Principal Financial and
Accounting Officer) and
/s/ Sharlene Abrams Secretary October 2, 2000
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SHARLENE ABRAMS
/s/ Igal Kohavi Director October 2, 2000
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IGAL KOHAVI
/s/Yair Shamir Director October 2, 2000
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YAIR SHAMIR
/s/Giora Yaron Director October 2, 2000
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GIORA YARON
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/s/Kenneth Klein Director October 2, 2000
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KENNETH KLEIN
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EXHIBIT INDEX
Exhibit
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Number Document
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4.1 Mercury Interactive Corporation 2000 Supplemental Stock Option Plan.
5.1 Opinion of Counsel as to Legality of Securities Being Registered.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see page 5).
