As filed with the Securities and Exchange Commission on April 2, 2002
Registration No. 333-________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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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) 855-0100
(Address of principal executive offices)(Zip Code)
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1999 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
-------------------
David Lockwood
Chief Executive Officer and President
INTERTRUST TECHNOLOGIES CORPORATION
4750 Patrick Henry Drive
Santa Clara, California 95054
(Name and address of agent for service)
(408) 855-0100
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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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 $1.23 $3,690,000 $339.48
1999 Employee Stock Purchase Plan
- ---------------------------------
Rights to Purchase 700,000 N/A N/A N/A
Common Stock (par value $0.001) 700,000 Shares $1.23 $ 861,000 $ 79.21
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Equity Incentive Plan
and 1999 Employee Stock Purchase Plan 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
March 28, 2002.
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 for the fiscal year ended
December 31, 2001;
(b) The Registrant's Registration Statement No. 000-27287 on Form
8-A filed with the SEC on September 9, 1999, together with all
subsequent 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 Securities Act of 1933, as amended (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.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
II-1
Item 8. Exhibits
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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 Ernst & Young LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
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 1999 Equity Incentive Plan or 1999 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 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 2nd day
of April, 2002.
INTERTRUST TECHNOLOGIES CORPORATION
By: /s/ David Lockwood
-------------------------------------------------
David Lockwood
Chief Executive Officer, President and Executive
Vice Chairman of the Board
POWER OF ATTORNEY
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KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of InterTrust
Technologies Corporation, a Delaware corporation, do hereby constitute and
appoint David Lockwood 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/David Lockwood Chief Executive Officer, President and Executive April 2, 2002
- ---------------------------------------- Vice Chairman of the Board (Principal
David Lockwood Executive Officer)
/s/Gregory S. Wood Chief Financial Officer (Principal Financial and April 2, 2002
- ---------------------------------------- Accounting Officer)
Gregory S. Wood
________________________________________ Chairman of the Board _____________
Victor Shear
II-3
Signature Title Date
- --------- ----- ----
/s/Edmund J. Fish Director and President, MetaTrust Utility April 2, 2002
- ----------------------------------------
Edmund J. Fish
/s/David C. Chance Director April 2, 2002
- ----------------------------------------
David C. Chance
/s/Robert Walker Director April 2, 2002
- ----------------------------------------
Robert Walker
________________________________________ Director _____________
Satish K. Gupta
/s/Patrick S. Jones Director April 2, 2002
- ----------------------------------------
Patrick S. Jones
________________________________________ Director _____________
Timo Ruikka
/s/Lester Hochberg Director April 2, 2002
- ----------------------------------------
Lester Hochberg
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 Ernst & Young LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.