-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EB3syFeAdrYYxb8OqveFFBpaHOK8x5ktGaQNU99sM3BDFD6lYlRIP5MKaEXATQIU 8+WBH88t8IuxSEl/n3daEg== 0001012870-02-000789.txt : 20020414 0001012870-02-000789.hdr.sgml : 20020414 ACCESSION NUMBER: 0001012870-02-000789 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020220 EFFECTIVENESS DATE: 20020220 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MERCURY INTERACTIVE CORPORATION CENTRAL INDEX KEY: 0000867058 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 770224776 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-83064 FILM NUMBER: 02554214 BUSINESS ADDRESS: STREET 1: 1325 BORREGAS AVE CITY: SUNNYVALE STATE: CA ZIP: 94089 BUSINESS PHONE: 4088225200 MAIL ADDRESS: STREET 1: 1325 BORREGAS AVENUE CITY: SUNNYVALE STATE: CA ZIP: 94089 S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on February 20, 2002. Registration No. 333- ================================================================================ 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 77-0225776 ------------------------ --------------------------------------- (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) AMENDED AND RESTATED 1999 STOCK OPTION PLAN ------------------------------------------- (Full title of the Plan) Amnon Landan President and Chief Executive Officer Mercury Interactive Corporation 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. Vice President, General Counsel and Secretary Mercury Interactive Corporation 1325 Borregas Avenue Sunnyvale, California 94089 (408) 822-5200
==================================================================================================================================== CALCULATION OF REGISTRATION FEE ==================================================================================================================================== Proposed Maximum Proposed Maximum Title of Securities Maximum Amount Offering Price Aggregate Amount of to be Registered to be Registered Per Share Offering Price Registration Fee - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, $.002 par value..... 3,995,750 shares(1) $38.04(2) $151,998,330(2) $13,983.85 - ------------------------------------------------------------------------------------------------------------------------------------
(1) This subtotal represents the sum of shares issuable upon exercise of options that have not yet been granted under the Amended and Restated 1999 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 February 14, 2002 because the price at which the options to be granted in the future may be exercised is not currently determinable. ================================================================================ PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INFORMATION INCORPORATED BY REFERENCE 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 29, 2001 pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act") which contains audited financial statements for the Registrant's fiscal year ended December 31, 2000, the latest fiscal year end 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. Item 4. DESCRIPTION OF SECURITIES Not Applicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not Applicable. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS 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 Bylaws 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 -2- 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 Exhibit Number Document ------- -------- 4.1 Amended and Restated 1999 Stock Option Plan, as amended through May 2000. (incorporated by reference to the identically numbered exhibit filed with the Company's Registration Statement on Form S-8 filed with the Commission on February 28, 2001, No. 333-56316). 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 4). 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 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. (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. -3- 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 February 19, 2002. MERCURY INTERACTIVE CORPORATION By: /s/ Douglas P. Smith -------------------------------------------------- Executive Vice President & Chief Financial Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Amnon Landan, Douglas Smith 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) February 19, 2002 - ------------------------------------ AMNON LANDAN Executive Vice President and Chief Financial Officer /s/ Douglas p. Smith (Principal Financial Officer) February 19, 2002 - ------------------------------------ DOUGLAS P. SMITH Vice President, Finance /s/ David A. Kempski (Principal Accounting Officer) February 19, 2002 - ------------------------------------ DAVID A. KEMPSKI /s/ Igal Kohavi Director February 19, 2002 - ------------------------------------ IGAL KOHAVI /s/ Yair Shamir Director February 19, 2002 - ------------------------------------ YAIR SHAMIR /s/ Giora Yaron Director February 19, 2002 - ------------------------------------ GIORA YARON /s/ Kenneth Klein Director February 19, 2002 - ------------------------------------ KENNETH KLEIN
-4- EXHIBIT INDEX Exhibit Number Document ------ ------- 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). 24.2 Power of Attorney (see page 4). SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________________________________ EXHIBITS Registration Statement on Form S-8 MERCURY INTERACTIVE CORPORATION February 20, 2002 EX-5.1 3 dex51.txt OPINION OF COUNSEL AS TO LEGALITY OF SECURITIES EXHIBIT 5.1 OPINION OF COUNSEL February 20, 2002 Mercury Interactive Corporation 1325 Borregas Avenue Sunnyvale, California 94089 Re: Registration Statement on Form S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about February 20, 2002 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of a total of 3,995,750 shares of your Common Stock (the "Shares") reserved for issuance under the Amended and Restated 1999 Stock Option Plan (the "Plan"). As legal counsel for Mercury Interactive Corporation, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of the Shares under the Plan. It is our opinion that, when issued and sold in the manner referred to in the Plan and pursuant to the agreement which accompanies each grant under the Plan, the Shares will be legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever it appears in the Registration Statement and any amendments thereto. Very truly yours, GENERAL COUNSEL ASSOCIATES LLP /s/ General Counsel Associates LLP EX-23.1 4 dex231.txt CONSENT OF INDEPENDENT ACCOUNTANTS Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 15, 2001, relating to the consolidated financial statements, which appears in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000. /s/ PRICEWATERHOUSECOOPERS LLP PricewaterhouseCoopers LLP San Jose, California February 20, 2002 -----END PRIVACY-ENHANCED MESSAGE-----