As filed with the Securities and Exchange Commission on February 23, 2001
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)
___________________
1999 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
1999 NON-EMPLOYEE DIRECTOR OPTION PLAN
2000 SUPPLEMENTAL PLAN
PUBLISHONE, INC. 1999 STOCK PLAN
SHARES ACQUIRED UNDER A WRITTEN COMPENSATORY AGREEMENT WITH GREGORY S. WOOD
(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)
___________________
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
Proposed Maximum Proposed Maximum
Amount to be Offering Price per Aggregate Offering Amount of
Title of Securities to be Registered Registered (1) Share (2) Price (2) Registration Fee
- ------------------------------------ ---------- ------ ----- ----------------
1999 Equity Incentive Plan
- --------------------------
Options 3,000,000 N/A N/A N/A
Common Stock (par value $0.001) 3,000,000 Shares $5.78 $17,340,000.00 $4,335.00
1999 Employee Stock Purchase Plan
- ---------------------------------
Options 700,000 N/A N/A N/A
Common Stock (par value $0.001) 700,000 Shares $5.78 $ 4,046,000.00 $1,011.50
1999 Non Employee Director Option Plan
- --------------------------------------
Options 700,000 N/A N/A N/A
Common Stock (par value $0.001) 700,000 Shares $5.78 $ 4,046,000.00 $1,011.50
Proposed Maximum Proposed Maximum
Amount to be Offering Price per Aggregate Offering Amount of
Title of Securities to be Registered Registered (1) Share (2) Price (2) Registration Fee
- ------------------------------------ ---------- ------ ----- ----------------
2000 Supplemental Plan
- ----------------------
Options 5,000,000 N/A N/A N/A
Common Stock (par value $0.001) 5,000,000 Shares $5.78 28,900,000 $7,225.00
PublishOne, Inc. 1999 Stock Plan
- --------------------------------
Options 1,196,905 N/A N/A N/A
Common Stock (par value $0.001) 1,196,905 Shares $5.78 6,918,110.90 $1,729.53
Shares Acquired under a Written
- -------------------------------
Compansatory Agreement with Gregory S.
- --------------------------------------- N/A N/A N/A
S. Wood
- -----
Options 360,000 $5.78 2,080,800 $520.20
Common Stock (par value $0.001) 360,000 Shares
1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Equity Incentive Plan,
1999 Employee Stock Purchase Plan, 1999 Non-Employee Director Option Plan,
2000 Supplemental Plan, PublishOne, Inc. 1999 Stock Plan, and the Shares
Acquired under a Written Compensatory Agreement with Gregory S. Wood 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 average of the high
and low price per share of Common Stock of InterTrust Technologies
Corporation, as reported on the Nasdaq National Market on February 16,
2001.
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 Annual Report on Form 10-K and Amended Annual
Report on Form 10-K/A for the fiscal year ended December 31, 1999;
(a) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2000, June 30, 2000, and September 30,
2000;
(b) The Registrant's Current Reports on Forms 8-K filed with the SEC
on December 23, 1999 and February 20, 2001; and
(c) 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
II-1
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.
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.
99.1 Form of Written Compensatory Agreement
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 1999 Equity Incentive Plan, 1999 Employee Stock
Purchase Plan, 1999 Non-Employee Director Option Plan, 2000 Supplemental Plan,
PublishOne, Inc. 1999 Stock Plan, and the Shares Acquired under a Written
Compensatory Agreement with Gregory S. Wood.
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 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.
II-2
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 23rd
day of February 2001.
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 Gregory S. Wood, 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.
Signature Title Date
- --------- ----- ----
/s/ Victor Shear Chairman of the Board and Chief Executive Officer February 23, 2001
- ----------------------- (Principal Executive Officer)
Victor Shear
/s/ Gregory S. Wood Chief Financial Officer (Principal Financial and February 23, 2001
- ----------------------- Accounting Officer)
Gregory S. Wood
_______________________ Executive Vice Chairman of the Board
David C. Chance
II-3
Signature Title Date
- --------- ----- ----
/s/ Edmund J. Fish Director, Executive Vice President, and Chief February 23, 2001
- ---------------------- Business Officer
Edmund J. Fish
______________________ Director
David Lockwood
/s/ Bruce Fredrickson
______________________ Director February 23, 2001
Bruce Fredrickson
/s/ Satish K. Gupta
______________________ Director February 23, 2001
Satish K. Gupta
II-4
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.
99.1 Form of Written Compensatory Agreement