As filed with the Securities and Exchange Commission on November 9, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
FILENET CORPORATION
Delaware 95-3757924
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
3565 Harbor Boulevard
Costa Mesa, California 92626
FILENET CORPORATION
1995 STOCK OPTION PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN
Lee D. Roberts
President and Chief Executive Officer
FILENET CORPORATION
3565 Harbor Boulevard, Costa Mesa, California 92626
(714) 966-3400
CALCULATION OF REGISTRATION FEE
===============================================================================
Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be Registered be Registered(1) Offering Price per Aggregate Offering Registration Fee
Share Price
1995 STOCK OPTION PLAN
Common Stock, 1,200,000 shares $8.48(2) $10,176,000(2) $2,828.93
$0.01 par value
1998 EMPLOYEE STOCK PURCHASE PLAN
Common Stock, 400,000 shares $8.48(2) $ 3,392,000(2) $ 942.98
$0.01 par value
INTERNATIONAL EMPLOYEE
STOCK PURCHASE PLAN
Common Stock, 200,000 shares $8.48(2) $ 1,696,000(2) $ 471.49
$0.01 par value
Aggregate Filing Fee $4,243.40
================================================================================
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the FileNET Corporation 1995 Stock
Option Plan, 1998 Employee Stock Purchase Plan or the International
Employee Stock Purchase Plan by reason of any stock dividend, stock split,
recapitalization or any other similar transaction without Registrant's
receipt of consideration which results in an increase in the number of
outstanding shares of Registrant's Common Stock.
(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 average of the high
and low selling prices per share of Registrant's Common Stock on November
5, 1998, as reported on the Nasdaq National Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
FileNET 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 Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, filed with the SEC on March 31, 1998
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1998 and June 30, 1998, filed with the SEC on May
14, 1998 and August 14, 1998, respectively;
(c) The Registrant's Registration Statement No. 0-15997 on Form 8-A
filed with the SEC on June 24, 1987, in which there is described the terms,
rights and provisions applicable to the Registrant's Common Stock.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (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. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Pursuant to the provisions of Section 145 of the General Corporation Law of
Delaware, the Registrant as a Delaware corporation has power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the Registrant) by reason of the fact that he or
she is or was a director, officer, employee or agent of the Registrant or of any
corporation, partnership, joint venture, trust or other enterprise for which he
or she is or was serving in such capacity at the request of the Registrant,
against any and all expenses, judgments, fines and amounts paid in settlement
which were reasonably incurred by him or her in connection with such action,
suit or proceeding. The power to indemnify applies only if such person acted in
good faith and in a manner he or she reasonably believed to be in the best
interests, or not opposed to the best interests, of the Registrant and, with
respect to any criminal action or proceeding, if he or she had no reasonable
cause to believe his or her conduct was unlawful.
The power to indemnify also applies to actions brought by or in the right
of the Registrant, but only to the extent of defense and settlement expenses and
not to any satisfaction of a judgment or settlement of the claim itself. In such
actions, however, no indemnification will be made if there is any adjudication
of negligence or misconduct, unless the court, in its discretion, feels that in
the light of all the circumstances indemnification should apply.
To the extent any such person is successful in the defense of the actions
referred to above, such person is entitled pursuant to Section 145 of the
General Corporation Law of Delaware to indemnification as described above.
Section 145 also grants power to advance litigation expenses upon receipt of an
undertaking to repay such advances in the event no right to indemnification is
subsequently shown. The Registrant may also obtain insurance at its expense to
protect anyone who might be indemnified, or has a right to insist on
indemnification, under the statute.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Exhibit
4 Instruments Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 0-15997 on Form 8-A,
together with the exhibits thereto, which is incorporate
herein by reference pursuant to Item 3(c) of this Registration
Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Independent Accountants - Deloitte & Touche LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration
Statement.
99.1 1995 Stock Option Plan (as Amended and Restated Through March 17,
1998).
99.2* Form of Notice of Grant of Stock Option.
99.3* Form of Stock Option Agreement.
99.4* Form of Addendum to Stock Option Agreement: Involuntary Termination
Following Corporate Transaction.
99.5* Form of Addendum to Stock Option Agreement: Involuntary Termination
Following Change in Control.
99.6* Form of Salary Reduction Option Grant Election.
99.7* Form of Notice of Grant under Salary Reduction Option Grant Program.
99.8* Form of Salary Reduction Stock Option Agreement.
99.9* Form of Notice of Grant of Non-Employee Director Automatic Stock
Option: Initial Grant.
99.10* Form of Notice of Grant of Non-Employee Director Automatic Stock
Option: Annual Grant.
99.11** Form of Automatic Stock Option Agreement.
99.12* Form of Director Fee Election.
99.13* Form of Notice of Grant of Non-Employee Director Stock Option under
Director Fee Option Grant Program.
99.14* Form of Director Fee Stock Option Agreement.
99.15 1998 Employee Stock Purchase Plan.
99.16 International Employee Stock Purchase Plan.
99.17 Form of Enrollment/Change Form (1998 and International Employee Stock
Purchase Plans).
Exhibits 99.2 through 99.10 and 99.12 through 99.14 are incorporated herein
by reference to Exhibits 99.2 through 99.10 and 99.12 through 99.14,
respectively, to Registrant's Registration Statement No. 33-80899 on Form
S-8, filed with the SEC on December 22, 1995.
** Exhibit 99.1 is incorporated herein by reference to Exhibit 99.11 to
Registrant's Registration Statement No. 333-34031 on Form S-8, filed with
the SEC on August 21, 1997.
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 Securities Act of 1933, as amended (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 by the Registrant pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by reference into 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 upon the termination of the Registrant's 1995 Stock Option Plan, 1998
Employee Stock Purchase Plan and/or the International Employee Stock Purchase
Plan.
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 into 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 indemnity provisions summarized in Item 6 or otherwise, the
Registrant has been informed 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 court 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.
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 Costa Mesa, State of California on November 9, 1998.
FILENET CORPORATION
By: /s/Lee D. Roberts
Lee D. Roberts
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of FileNET Corporation, a
Delaware corporation, do hereby constitute and appoint Theodore J. Smith and
Mark S. St. Clare, and each 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, or 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
regulation 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.
Signatures Title Date
/s/Lee D. Roberts President and Chief Executive November 9, 1998
Lee D. Roberts Officer (Principal Executive
Officer)
/s/Theodore J. Smith Chairman of the Board November 9, 1998
Theodore J. Smith
/s/Mark S. St. Clare Senior Vice President-Finance, November 9, 1998
Mark S. St. Clare Chief Financial Officer and
Secretary (Principal Financial
Officer)
/s/Lee M. Kim Controller, Chief Accounting November 9, 1998
Lee M. Kim Officer and Assistant Secretary
/s/John C. Savage Director November 9, 1998
John C. Savage
/s/William P. Lyons Director November 9, 1998
William P. Lyons
/s/L. George Klaus Director November 9, 1998
L. George Klaus
/s/Roger S. Siboni Director November 9, 1998
Roger S. Siboni
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
FILENET CORPORATION
EXHIBIT INDEX
Exhibit No. Exhibit
4 Instruments Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 0-15997 on Form 8-A, together
with the exhibits thereto, which is incorporated herein by reference
pursuant to Item 3(c) of this Registration Statement
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Independent Accountants - Deloitte & Touche LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration
Statement.
99.1 1995 Stock Option Plan (as Amended and Restated Through March 17, 1998).
99.2* Form of Notice of Grant of Stock Option.
99.3* Form of Stock Option Agreement
99.4* Form of Addendum to Stock Option Agreement: Involuntary Termination
Following Corporate
Transaction.
99.5* Form of Addendum to Stock Option Agreement: Involuntary Termination
Following Change in Control.
99.6* Form of Salary Reduction Option Grant Election.
99.7* Form of Notice of Grant under Salary Reduction Option Grant Program.
99.8* Form of Salary Reduction Stock Option Agreement.
99.9* Form of Notice of Grant of Non-Employee Director Automatic Stock Option:
Initial Grant.
99.10* Form of Notice of Grant of Non-Employee Director Automatic Stock Option:
Annual Grant.
99.11** Form of Automatic Stock Option Agreement.
99.12* Form of Director Fee Election.
99.13* Form of Notice of Grant of Non-Employee Director Stock Option under
Director Fee Option Grant Program.
99.14* Form of Director Fee Stock Option Agreement.
99.15 1998 Employee Stock Purchase Plan.
99.16 International Stock Purchase Plan.
99.17 Form of Enrollment/Change Form (1998 and International Employee Stock
Purchase Plan).
* Exhibits 99.2 through 99.10 and 99.12 through 99.14 are incorporated
herein by reference to Exhibits 99.2 through 99.10 and 99.12 through 99.14,
respectively, to Registrant's Registration Statement No. 33-80899 on Form S-8,
filed with the SEC on December 22, 1995.
** Exhibit 99.11 is incorporated herein by reference to Exhibit 99.11 to
Registrant's Registration Statement No. 333-34031 on Form S-8, filed with the
SEC on August 21, 1997.
EXHIBIT 5
Opinion of Brobeck, Phleger & Harrison LLP
November 9, 1998
FileNET Corporation
3565 Harbor Boulevard
Costa Mesa, CA 92626
Re: FileNET Corporation (the "Company") Registration Statement
on Form S-8 for Registration of an aggregate of 1,800,000
Shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel to FileNET Corporation, a Delaware corporation
(the "Company") in connection with the registration on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, of (i)
an additional 1,200,000 shares of the Company's common stock for issuance under
the Company's 1995 Stock Option Plan (the "Option Plan"), (ii) 400,000 shares of
the Company's common stock for issuance under the Company's 1998 Employee Stock
Purchase Plan (the "Purchase Plan") and (iii) 200,000 shares of the Company's
common stock for issuance under the Company's International Employee Stock
Purchase Plan (the "International Purchase Plan").
This opinion is being furnished in accordance with the requirements of Item
8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the amendment of the Option
Plan and the establishment of the two Purchase Plans. Based on such review, we
are of the opinion that if, as and when the shares are issued and sold (and the
consideration therefor received) pursuant to (a) the provisions of option
agreements duly authorized under the Option Plan and in accordance with the
Registration Statement, or (b) duly authorized direct stock issuances under the
Option Plan and in accordance with the Registration Statement or (c) duly
authorized stock purchases under the two Purchase Plans and in accordance with
the Registration Statement, such shares will be duly authorized, legally issued,
fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement.
This opinion letter is rendered as of the date first written above and we
disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company, the
Option Plan, the Purchase Plan, the International Purchase Plan or the shares of
the Company's common stock issuable under such plans.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
EXHIBIT 23.1
Consent of Deloitte & Touche LLP
We consent to the incorporation by reference in this Registration Statement
of FileNET Corporation on Form S-8 of our reports dated February 3, 1998,
appearing in, and incorporated by reference in, the Annual Report on Form 10-K
of FileNET Corporation for the fiscal year ended December 31, 1997.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Costa Mesa, California
November 9, 1998