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As filed with the Securities and Exchange Commission on November 10, 1999
Registration No. 333-89579
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INKTOMI CORPORATION
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
Delaware 4100 E. Third Avenue 94-3238130
(State or other jurisdiction Foster City, CA 94404 (I.R.S. Employer
of incorporation or organization) (650) 653-2800 Identification No.)
</TABLE>
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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Timothy Stevens
Vice President of Corporate and Legal Affairs and General Counsel
INKTOMI CORPORATION
4100 E. Third Avenue, Foster City, CA 94404
(650) 653-2800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Douglas H. Collom, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road, Palo Alto, California 94304
(650) 493-9300
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Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Share(1) Offering Price(1) fee
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Common Stock, $0.001 par value............ 716,753 shares $116.57 $83,551,897 $23,228(2)
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(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of 1933,
as amended, based on the average of the high and low sales prices as
reported on the Nasdaq National Market on October 20, 1999.
(2) Previously paid.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the SEC, acting pursuant to said Section
8(a), may determine.
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<PAGE>
PROSPECTUS
Inktomi Corporation
4100 East Third Avenue
Foster City, CA 94404
Telephone Number: (650) 653-2800
716,753 Shares
INKTOMI CORPORATION
Common Stock
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These shares may be offered and sold from time to time by stockholders of
Inktomi Corporation ("Inktomi") identified in this prospectus. See "Selling
Stockholders." The selling stockholders acquired the shares on October 1, 1999
in connection with Inktomi's acquisition of WebSpective Software, Inc.
The selling stockholders will receive all of the net proceeds from the sale
of the shares. These stockholders will pay all underwriting discounts and
selling commissions, if any, applicable to the sale of the shares. Inktomi will
not receive any proceeds from the sale of the shares.
You should consider carefully the risk factors beginning on page 4 of this
prospectus before purchasing any of the common stock offered hereby.
Inktomi's common stock is quoted on the Nasdaq National Market under the
symbol "INKT." On November 9, 1999, the last reported sale price of the common
stock was $115.5625 per share.
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The Securities and Exchange Commission and state securities regulators have
not approved or disapproved these securities, or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal
offense.
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November 10, 1999
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TABLE OF CONTENTS
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Page
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Available Information................................................... 3
Information Incorporated by Reference................................... 3
Forward Looking Information............................................. 3
Risk Factors............................................................ 4
Use of Proceeds......................................................... 12
Selling Stockholders.................................................... 12
Plan of Distribution.................................................... 17
Legal Matters........................................................... 18
Experts................................................................. 18
</TABLE>
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from that
contained in this prospectus. The selling stockholders are offering to sell,
and seeking offers to buy, shares of Inktomi common stock only in
jurisdictions where offers and sales are permitted. The information contained
in this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or of any sale of the
shares.
In this prospectus, "Inktomi," "we," "us," and "our" refer to Inktomi
Corporation and its subsidiaries.
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AVAILABLE INFORMATION
We file annual, quarterly and special reports, proxy statements, and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available
to the public at the SEC's web site at http://www.sec.gov. Additional
information about us may be found on our web site at HYPERLINK
http://www.inktomi.com. Information contained on our web site does not
constitute part of this prospectus.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below, and any future filings
made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), until the selling
stockholders sell all the shares. This prospectus is part of a Registration
Statement we filed with the SEC (Registration No. 333-89579). The documents we
incorporate by reference are:
1. Our Annual Report on Form 10-K for the fiscal year ended September
30, 1998;
2. Our Quarterly Report on Form 10-Q for the quarter ended June 30,
1999;
3. Our Quarterly Report on Form 10-Q for the quarter ended March 31,
1999;
4. Our Quarterly Report on Form 10-Q for the quarter ended December 31,
1998;
5. Our Current Report on Form 8-K dated October 15, 1999, as amended
November 5, 1999, relating to our acquisition of WebSpective Software,
Inc.;
6. Our Current Report on Form 8-K dated May 13, 1999 relating to our
acquisition of Impulse Buy Network, Inc.;
7. Our Current Report on Form 8-K dated December 29, 1998 relating to
our stock split;
8. Our Current Report on Form 8-K dated November 6, 1998 relating to our
acquisition of C2B Technologies, Inc.;
9. Our Current Report on Form 8-K dated October 9, 1998, as amended
November 2, 1998, relating to our acquisition of C2B Technologies, Inc.;
and
10. The description of our common stock contained in our Registration
Statement on Form 8-A as filed with the SEC on May 22, 1998.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address: General Counsel, Inktomi Corporation,
4100 E. Third Avenue, Foster City, CA 94404; telephone number (650) 653-2800.
FORWARD LOOKING INFORMATION
This prospectus, including the information incorporated by reference herein,
contains forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the "Securities Act"), and Section 21E of
the Exchange Act. Our actual results could differ materially from those
projected in the forward-looking statements as a result of the risk factors set
forth below. In particular, please review the sections captioned "Management's
Discussion and Analysis of Financial Condition and Results of Operations" in
our annual report on Form 10-K for the fiscal year ended September 30, 1998,
and our quarterly report on Form 10-Q for the quarter ended June 30, 1999,
which reports are incorporated herein by reference and such section of any
subsequently filed Exchange Act reports. In connection with forward-looking
statements which appear in these disclosures, prospective purchasers of the
shares offered hereby should carefully consider the factors set forth in this
prospectus under "Risk Factors."
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RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. Additional risks and uncertainties not presently known to
us or that we currently deem immaterial may also impair our business
operations.
If any of the following risks actually occur, our business, financial
condition or results of operations could be materially adversely affected. In
that case, the trading price of our common stock could decline.
We have a history of operating losses, expect to incur future losses, and
cannot be certain that we will become a profitable company.
Inktomi was founded in February 1996 and has a limited operating history. As
of June 30, 1999, we had an accumulated deficit of $57.7 million. We have not
achieved profitability and expect to continue to incur net losses for at least
the next several quarters. We expect to continue to incur significant sales and
marketing, product development and administrative expenses across all lines of
our business, and in particular in our shopping engine business as we continue
to develop and enhance our shopping technology, solidify and refine the
business model, integrate Impulse! Buy Network into our operations and initiate
new sales and marketing efforts. As a result, we will need to generate
significant revenues to achieve and maintain profitability. Although our
revenues have grown in recent quarters, we cannot be sure that this growth will
continue at the same rate or that we will achieve sufficient revenues for
profitability. If we do achieve profitability, we cannot be sure that we can
sustain or increase profitability on a quarterly or annual basis in the future.
Our business substantially depends upon the success of our Traffic Server
product.
Our future growth substantially depends on the commercial success of our
Traffic Server network cache product, which we have licensed to only a small
number of customers. We are initially targeting telecommunications carriers and
Internet service providers for our Traffic Server product, although we are
expanding our customer prospects to include Internet hosting providers, OEM
customers and large enterprise customers. Our ability to generate substantial
and sustained revenues from our Traffic Server product is dependent upon
achieving sales penetration in each of these market segments and significantly
increasing the number of new and repeat customer transactions. The market for
large-scale network caching is in its early stages, and we are not sure our
target customers will widely adopt and deploy caching technology throughout
their networks. Even if they do so, they may not choose our Traffic Server
network cache product, because it does not include the features they require,
they wish to outsource content distribution services to a third party vendor
rather than directly implement caching in their networks, or for technical,
cost, support or other reasons. Although we have tested our Traffic Server
product prior to making it available to customers, we cannot be sure that we
have found and fixed all significant performance errors. If our target
customers do not widely adopt and purchase our Traffic Server product, our
business, financial condition and results of operations will be adversely
affected.
Our business would be harmed if customers choose not to use or promote our
search and directory services.
Revenues from our search and directory services result primarily from the
number of end-user searches that are processed by our search engine and
directory engine and the level of advertising revenue generated by our Internet
portal and other web site customers. Our agreements with customers do not
require them to direct end-users to our search or directory services or to use
our search or directory services exclusively or at all. For example, in January
1999, Microsoft announced that it had signed an agreement to license online
communications technologies to a third party and in exchange would adopt the
search technology provided by the third party as the primary search engine for
the MSN Network, replacing our search engine. Accordingly, revenues from search
and directory services are highly dependent upon the willingness of customers
to promote and use the search and directory services we provide, the ability of
our customers to attract end-users to their
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online services, the volume of end-user searches that are processed by our
search engine and directory engine, and the ability and willingness of
customers to sell advertisements on the Internet pages viewed by end-users.
Certain of our customers have selected competing search and directory services
to operate in combination with our services, which has reduced the number of
queries available for us to serve and may erode future revenue growth
opportunities. The technological barriers for customers to implement additional
services or to replace our services are not substantial.
Our entry into the online shopping business will require us to develop
significant new capabilities and may not be successful.
The online shopping market is in a rapid state of evolution with a wide
variety of companies, including large Internet portals, online merchants,
online merchant aggregators, auction sites and other web sites, expending
substantial funds to develop brand recognition and large bases of end user
consumers. We are still developing and refining the business model for our
Internet shopping engine in light of this rapidly changing business
environment. We continue to anticipate that revenues will be generated by
revenue-sharing arrangements with online merchants, and by per-query search
fees, advertising revenue and license, support and maintenance fees from
Internet portals and other web site customers. The success of our shopping
engine will largely depend on a variety of factors, including:
. our ability to establish and maintain strong relationships with
customers and online merchants;
. our ability to assemble a robust and varied database of products of
interest to end user consumers;
. the ability and willingness of our customers to promote our shopping
services on their web sites;
. the dollar volume of online purchases made by end users of our
customers' web sites;
. the ability of participating merchants to successfully merchandize
their products through our shopping engine; and
. the level of advertising revenues generated by customers.
We launched the first commercial version of our Internet shopping engine in
mid-1999. Our shopping engine is designed to collect and organize vast amounts
of electronic information from online merchants and publishers of comparative
product information. The shopping engine is also designed to track and confirm
purchases made by end-users of our customers' services and to generate invoices
for our online merchants to pay revenue-sharing amounts to us. These are highly
complex tasks. We have experienced some difficulty and delays in implementing
our shopping service, stabilizing and optimizing our product database,
consistently tracking end user consumer purchases and rolling out new features.
We anticipate that resolving current technological challenges, developing
required features to meet current customer commitments, and developing and
deploying new features will require significant additional expenses and
management and development resources. We have made significant investments in
our online shopping business and expect to continue to do so. This investment
has been and will continue to be required in advance of generating revenues,
which have not been significant to date and are expected to be modest for the
next few quarters. We cannot be sure that our entry into the online shopping
business will be successful.
The markets in which we operate are highly competitive and we may be unable to
compete successfully against new entrants and established companies with
greater resources.
We compete in markets that are new, intensely competitive, highly fragmented
and rapidly changing. We face competition in the overall Internet
infrastructure market as well as the network cache, Internet search/directory
and online shopping segments of this market. We have experienced and expect to
continue to experience increased competition from current and potential
competitors, many of which have significantly greater financial, technical,
marketing and other resources.
5
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Competition in the network cache market continues to intensify as market
segmentation is increasing, new solutions are coming to market and several
companies are forming technology alliances and OEM relationships to sell their
products. We directly compete primarily against several companies including
CacheFlow, Cisco Systems, InfoLibria, Microsoft, Netscape, Network Appliance,
Novell and Spyglass. We also compete against freeware caching solutions
including CERN, Harvest and Squid. In addition, we are aware of numerous other
major software developers as well as smaller entrepreneurial companies that are
focusing significant resources on developing and marketing products and
services that will compete with Traffic Server. We also believe that Traffic
Server may face competition from other providers of competing solutions to
network infrastructure problems, including networking hardware and software
manufacturers, content distribution service providers, traditional hardware
manufacturers, telecommunications providers, cable TV/communications providers,
software database companies, and large diversified software and technology
companies. Many of these companies provide or have announced their intentions
to provide a range of software and hardware products based on Internet
protocols and to compete in the broad Internet/intranet software market as well
as in specific market segments in which we compete.
We compete with a number of companies to provide Internet search and
directory services, many of which have operated services in the market for a
longer period, have greater financial resources, have established marketing
relationships with leading online services and advertisers, and have secured
greater presence in distribution channels. Traditionally, our competitors have
provided search/directory services directly to end-users through their own web
sites and have supplied search/directory services to third-party web sites as a
supplement to this business. However, we are facing increased competition from
several newer competitors that are following our business model of providing
Internet search/directory services primarily to Internet portals and other web
site customers. These newer competitors have focused on search result relevance
and ease of use in providing their services. We currently compete with
companies including Alta Vista, Ask Jeeves, Direct Hit Technologies,
Excite@Home, Google, Infoseek, LookSmart, Lycos, Netscape Open Directory and
Northern Light. In addition, large media companies, such as The Walt Disney
Company and NBC Enterprises, and other Internet-based companies such as America
Online and Excite@Home, have recently made investments in or acquired Internet
search engine companies, and we believe that other large media enterprises may
enter or expand their presence in the Internet search and directory market,
either directly or indirectly through collaborations or other strategic
alliances.
The market for our shopping engine application is rapidly evolving and
intensely competitive. Our current and potential competitors include other OEM
providers of shopping technologies and services including Bottom Dollar,
InfoSpace and mySimon, third party merchant aggregators including Affinia,
SnapShot and WizShop, and Internet portals and other captive marketplace web
sites, including Amazon.com, America Online, Excite@Home, Lycos and Yahoo!. We
believe the principal factors that will draw end-users to an online shopping
application include brand availability, selection, personalized services,
convenience, price, accessibility, customer service, quality of search tools,
quality of content, and reliability and speed of fulfillment for products
ordered. We will have little or no control over many of these factors.
Our competitors may be able to respond more quickly to new or emerging
technologies and changes in customer requirements than we can. In addition, our
current and potential competitors may bundle their products with other software
or hardware, including operating systems and browsers, in a manner that may
discourage users from purchasing products offered by us. Also, current and
potential competitors have greater name recognition, more extensive customer
bases and access to proprietary content. Increased competition could result in
price reductions, fewer customer orders, fewer search queries served, reduced
gross margins and loss of market share.
The loss of a key customer could adversely affect our revenues and be perceived
as a loss of momentum in our business.
We have generated a substantial portion of our historical revenues from a
limited number of customers. We expect that a small number of customers will
continue to account for a substantial portion of revenues for
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the foreseeable future. As a result, if we lose a major customer for any
reason, including non-renewal of a customer contract, or in the case of our
search engine business, if there is a decline in usage of any customer's search
service, our revenues would be adversely affected. In addition, potential
customers of Inktomi and public market analysts or investors may perceive any
such loss as a loss of momentum in our business, which may adversely affect
future opportunities to sell our products and services and cause our stock
price to decline. Also, we cannot be sure that customers that have accounted
for significant revenues in past periods, individually or as a group, will
continue to generate revenues in any future period.
If we do not meet performance requirements in our portal services agreements,
customers may cancel our service or choose a different service.
Our search engine, directory engine and shopping engine agreements typically
include specific performance requirements, including the features provided,
reliability, processing speed, size of the Internet database maintained, number
of merchants and products within the database, and frequency of updating the
database. In addition, we believe it is important to maintain features and
functionality that are not explicitly covered in our agreements, such as high
relevance of search and product results. The growing volume of search queries
processed by our search engine and the frequency with which we update our
portal services to include additional functionality have placed some strain on
our operational capability to meet customer requirements. If we do not meet
these requirements, customers may cancel our service or choose to use a
different service.
Circumstances beyond our control may result in service interruptions which
could cause our business to suffer.
We provide our portal services from multiple data centers, all of which are
housed at facilities operated by a single-source hosting provider.
Circumstances outside of our control such as fires, earthquakes, power
failures, telecommunications failures, sabotage, unauthorized intrusions into
our databases and similar events may bring down one or more of our data
centers. For example, in June 1998, lightning struck the facility housing our
data center in Virginia, interrupting service from this center. In addition,
our data center hosting provider has experienced network failures from time to
time, which has also interrupted our service. Service interruptions for any
reason would reduce our revenues and could result in contract cancellations.
Our quarterly operating results may fluctuate significantly, and these
fluctuations may cause our stock price to fall.
We expect that a significant portion of our future revenues will come from
licenses of Traffic Server. We further expect that these revenues will come
from licenses of Traffic Server to a small number of customers. The volume and
timing of orders are difficult to predict because the market for Traffic Server
is in its early stages and the sales cycle varies substantially from customer
to customer. The cancellation or deferral of even a small number of licenses of
Traffic Server would reduce our expected revenues, which would adversely affect
our quarterly financial performance. To the extent significant sales occur
earlier than expected, operating results for later quarters may not compare
favorably with operating results from earlier quarters.
Our operating expenses are largely based on anticipated revenue trends and a
high percentage of our expenses are fixed in the short term. We plan to
significantly increase our operating expenses to enhance and support our online
shopping business, expand our sales and marketing operations, broaden our
customer support capabilities, establish new data centers, develop new
distribution channels, and fund greater levels of research and development. A
delay in generating or recognizing revenue for the reasons set forth above or
for any other reason could cause significant variations in our operating
results from quarter to quarter and could result in substantial operating
losses.
Due to these factors, we believe that quarter-to-quarter comparisons of our
operating results are not a good indication of our future performance. It is
likely that in some future quarter, our operating results may be below the
expectations of public market analysts or investors, and the price of our
common stock may fall.
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Our operating results may fluctuate because the sales cycle for Traffic Server
is long.
To date, our customers have taken a long time to evaluate Traffic Server,
and many people within our customers' organizations have been involved in the
process. Along with our distribution partners, we spend a significant amount of
time educating and providing information to our prospective customers regarding
the use and benefits of Traffic Server. Even after purchase, our customers tend
to deploy Traffic Server slowly and deliberately, depending on the skill set of
the customer, the size of the deployment, the complexity of the customer's
network environment, and the quantity of hardware and the degree of hardware
configuration necessary to deploy Traffic Server. The long sales and
implementation cycles for Traffic Server may cause license revenues and
operating results to vary significantly from period to period.
Our success depends on our ability to expand our sales and support
organizations.
We will need to substantially expand our direct and indirect sales
operations, both domestically and internationally, in order to increase market
awareness and sales of our products. Our products and services require a
sophisticated sales effort targeted at several people within our prospective
customers' organizations. We have recently expanded our direct sales force and
plan to hire additional sales personnel. Competition for qualified sales
personnel is intense, and we might not be able to hire the kind and number of
sales personnel we are targeting. In addition, we believe that our future
success is dependent upon establishing and maintaining productive relationships
with a variety of distribution partners, including OEMs, resellers, systems
integrators and joint marketing partners. We seek to sign up distribution
partners that have a substantial amount of technical expertise in the computer
network and telecommunications industry. Even with this expertise, our
distribution partners generally require a significant amount of training and
support from us, and we anticipate that it will take several quarters before
any of our distribution partners will develop the expertise and skills we
believe necessary to effectively sell our products. We cannot be sure that we
will be successful in signing up desired distribution partners or that our
distribution partners will devote adequate resources or have the technical and
other sales capabilities to sell our products.
Similarly, the complexity of our products and the difficulty of installing
them require highly trained customer service and support personnel. We
currently have a small customer service and support organization and will need
to increase our staff to support new customers, new product lines (such as the
recent addition of our shopping engine and directory engine), the expanding
needs of existing customers and the internationalization of our business.
Competition for customer service and support personnel is intense in our
industry due to the limited number of people available with the necessary
technical skills and understanding of the Internet.
Our success depends on our ability to manage growing and changing operations.
Our ability to successfully offer products and services and implement our
business plan in a rapidly evolving market requires an effective planning and
management process. We continue to increase the scope of our operations
domestically and internationally and have grown our headcount substantially.
This growth has placed, and our anticipated future operations will continue to
place, a significant strain on our management systems, personnel and other
resources. We expect that we will need to continue to improve our financial and
managerial controls and reporting systems and procedures, enhance our internal
and external security systems, and continue to expand, train and manage our
work force worldwide. Furthermore, we expect that we will be required to manage
multiple relationships with various customers, merchants and other third
parties.
The legal environment in which we operate is uncertain and claims against us
could cause our business to suffer.
Our products and services operate in part by making copies of material
available on the Internet and other networks and making this material available
to end-users from a central location. This creates the potential for claims to
be made against us (either directly or through contractual indemnification
provisions with customers)
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for defamation, negligence, copyright or trademark infringement, personal
injury, invasion of privacy or other legal theories based on the nature,
content or copying of these materials. These claims have been threatened
against us from time to time and have been brought, and sometimes successfully
pressed, against online service providers. It is also possible that if any
information provided through any of our portal services or facilitated by our
Traffic Server product contains errors, third parties could make claims against
us for losses incurred in reliance on this information. Further, there is the
potential for product liability claims to be asserted against us by end-users
who purchase goods and services through our shopping engine. Although we carry
general liability insurance, our insurance may not cover potential claims of
this type or be adequate to protect us from all liability that may be imposed.
Internet-related laws could adversely affect our business.
Laws and regulations which apply to communications and commerce over the
Internet are becoming more prevalent. The most recent session of the United
States Congress resulted in Internet laws regarding children's privacy,
copyrights, taxation and the transmission of sexually explicit material. The
European Union recently enacted its own privacy regulations, and is currently
considering copyright legislation that may extend the right of reproduction
held by copyright holders to include the right to make temporary copies for any
reason. The law of the Internet, however, remains largely unsettled, even in
areas where there has been some legislative action. It may take years to
determine whether and how existing laws such as those governing intellectual
property, privacy, libel and taxation apply to the Internet. In addition, the
growth and development of the market for online commerce may prompt calls for
more stringent consumer protection laws, both in the United States and abroad,
that may impose additional burdens on companies conducting business online. The
adoption or modification of laws or regulations relating to the Internet, or
interpretations of existing law, could adversely affect our business.
The Internet infrastructure market is rapidly changing and we must develop and
introduce new products and technologies to remain competitive.
The Internet infrastructure market is characterized by rapid technological
change, frequent new product introductions, changes in customer requirements
and evolving industry standards. The introduction of products embodying new
technologies and the emergence of new industry standards could render our
existing products obsolete. Our future success will depend upon our ability to
develop and introduce a variety of new products and product enhancements to
address the increasingly sophisticated needs of our customers. The increasing
scope of our business has led us to allocate additional resources to our
current business opportunities and fewer resources to longer term projects. We
have experienced delays in releasing new products and product enhancements and
may experience similar delays in the future. Material delays in introducing new
products and enhancements may cause customers to forego purchases of our
products or purchase those of our competitors.
If we are unable to maintain our relationships with customers and the companies
that supply and distribute our products, we may have difficulty selling our
products and services.
We believe that our success in penetrating our target markets depends in
part on our ability to develop and maintain strategic relationships with key
hardware and software vendors, Internet technology and service providers,
distribution partners and customers. We believe these relationships are
important in order to validate our technology, facilitate broad market
acceptance of our products, enhance our product and service offering, and
expand our sales, marketing and distribution capabilities. If we are unable to
develop key relationships or maintain and enhance existing relationships, we
may have difficulty selling our products and services.
We have from time to time licensed components from others such as reporting
functions and security features and incorporated them into our products and
services. If these licensed components are not maintained, it could impair the
functionality of our products and services and require us to obtain alternative
products from other sources or to develop this software internally, either of
which could involve costs and delays as well as diversion of engineering
resources.
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We may not be able to recruit and retain the personnel we need to succeed.
We intend to hire a significant number of additional sales, support,
marketing, and research and development personnel. Competition for these
individuals is intense, and we may not be able to attract or retain additional
highly qualified personnel in the future. Our future success also depends upon
the continued service of our executive officers and other key sales, marketing
and support personnel. In addition, our products and technologies are complex,
and we are substantially dependent upon the continued service of our existing
engineering personnel, and especially our founders. None of our officers or key
employees is bound by an employment agreement for any specific term. Our
relationships with these officers and key employees are at will. We do not have
key person life insurance policies covering any of our employees.
Any acquisitions that we make could adversely affect our operations or
financial results.
We have purchased three companies since September 1998 and intend to
continue to invest in or acquire complementary companies, products or
technologies in the future. If we buy a company, we could have difficulty in
assimilating that company's personnel and operations. In addition, the key
personnel of the acquired company may decide not to work for us. Also, we could
have difficulty in integrating the acquired technology or products into our
operations. These difficulties could disrupt our ongoing business, distract our
management and employees and increase our expenses. Furthermore, we may have to
incur debt or issue equity securities to pay for any future acquisitions, the
issuance of which could be dilutive to our stockholders.
Our efforts to increase our presence in markets outside of the United States
may be unsuccessful and could result in losses.
We market and sell our products in the United States and internationally. We
have offices in England, France, Germany, Japan and Korea to market and sell
our products in those countries and surrounding regions. We plan to establish
additional facilities in other parts of the world. The expansion of our
existing international operations and entry into additional international
markets will require significant management attention and financial resources.
We cannot be sure that our investments in establishing facilities in other
countries will produce desired levels of revenue. We currently have limited
experience in developing localized versions of our products and marketing and
distributing our products internationally. In addition, other inherent risks
may apply to international operations, including:
. the impact of recessions in economies outside the United States;
. greater difficulty in accounts receivable collection and longer
collection periods;
. unexpected changes in regulatory requirements;
. difficulties and costs of staffing and managing foreign operations;
. potentially adverse tax consequences; and
. political and economic instability.
Our international expenses are generally denominated in local currencies. We
do not currently engage in currency hedging activities. Although exposure to
currency fluctuations to date has been insignificant, future fluctuations in
currency exchange rates may adversely affect results of international
operations.
Our failure to protect our intellectual property rights could adversely affect
our ability to compete.
Our success and ability to compete are substantially dependent upon our
internally developed technology. We generally enter into confidentiality or
license agreements with our employees, consultants and corporate partners, and
generally control access to and distribution of our software, documentation and
other proprietary information. Despite our efforts to protect our proprietary
rights, unauthorized parties may attempt to copy or otherwise obtain and use
our products or technology. Policing unauthorized use of our products is
difficult, and
10
<PAGE>
we cannot be sure that the steps we have taken will prevent misappropriation of
our technology, particularly in foreign countries where the laws may not
protect our proprietary rights as fully as in the United States.
Intellectual property claims against us could cause our business to suffer.
Substantial litigation regarding intellectual property rights exists in the
software industry. We expect that software products may be increasingly
vulnerable to third-party infringement claims as the number of competitors in
our industry segments grows and the functionality of products in different
industry segments overlaps. Lycos has announced that it is the exclusive
licensee of a patent covering a method of crawling information on the Internet,
and that it may bring actions against companies that it believes are infringing
this patent in the future. We also believe that many companies have filed or
intend to file patent applications covering aspects of their technology that
they may claim our technology infringes. A few of these companies have sent
copies of their patents to Inktomi for informational purposes. We cannot be
sure that Lycos or other third parties will not make a claim of infringement
against us with respect to our products and technology. Any claims, with or
without merit, could be time consuming to defend, result in costly litigation,
divert management's attention and resources, and could cause product shipment
delays or require us to reengineer our products or enter into royalty or
licensing agreements. These royalty or licensing agreements, if required, may
not be available on acceptable terms, if at all.
If our products or the products upon which we depend malfunction because of
Year 2000 problems, our operations may be interrupted and we may be subject to
warranty and product liability claims.
Our software products operate in complex network environments and directly
and indirectly interact with a number of other hardware and software systems.
Despite investigation and testing by us and our partners, our software products
and the underlying systems and protocols running our products may contain
errors or defects associated with Year 2000 date functions. We are unable to
predict to what extent our business may be affected if our software or the
systems that operate in conjunction with our software experience a material
Year 2000 failure. Known or unknown errors or defects that affect the operation
of our software could result in delay or loss of revenue, interruption of
search or shopping services, cancellation of customer contracts, diversion of
development resources, damage to our reputation, increased service and warranty
costs, and litigation costs, any of which could adversely affect our business,
financial condition and results of operations.
Our stock price is volatile.
The market price of our common stock has fluctuated in the past and is
likely to fluctuate in the future. In addition, the securities markets have
experienced significant price and volume fluctuations, and the market prices of
the securities of Internet-related companies have been especially volatile. In
the past, companies that have experienced volatility in the market price of
their stock have been the subject of securities class action litigation. If we
were the subject of securities class action litigation, it could result in
substantial costs and a diversion of management's attention and resources.
11
<PAGE>
USE OF PROCEEDS
Inktomi will not receive any proceeds from the sale of the shares by the
selling stockholders. All net proceeds from the sale of Inktomi common stock
will go to the stockholders who offer and sell their shares.
SELLING STOCKHOLDERS
The following table sets forth certain information, as of October 22, 1999,
with respect to the number of shares of common stock owned by the selling
stockholders named below and as adjusted to give effect to the sale of the
shares offered hereby. The shares are being registered to permit public
secondary trading of the shares, and the selling stockholders may offer the
shares for resale from time to time.
The shares being offered by the selling stockholders were acquired from
Inktomi in connection with Inktomi's acquisition of WebSpective Software, Inc.
pursuant to an Agreement and Plan of Reorganization dated September 15, 1999
(the "Reorganization Agreement"). In the acquisition, the shares of common
stock were issued pursuant to an exemption from the registration requirements
of the Securities Act. The selling stockholders represented to Inktomi that
they were acquiring the shares for investment and with no present intention of
distributing the shares.
Inktomi has filed with the SEC, under the Securities Act, a registration
statement on Form S-3 (the "Registration Statement") of which this prospectus
forms a part, with respect to the resale of the shares from time to time. In
the Declaration of Registration Rights made and executed by Inktomi on October
1, 1999 pursuant to the Reorganization Agreement, Inktomi has agreed to use its
best efforts to keep the Registration Statement effective for 270 days or, if
earlier, the date that all shares have been sold.
The shares offered by this prospectus may be offered from time to time by
the selling stockholders named below:
<TABLE>
<CAPTION>
Number of
Shares Number Number of
Beneficially of Shares
Owned Prior Shares Beneficially
Name of Selling Address of Selling to the Being Owned After
Stockholder Stockholder Offering Offered the Offering
--------------- ----------------------- ------------ ------- ------------
<C> <S> <C> <C> <C>
Abbott, Freeland.......... 37 Berkeley Street, 2,234 2,068 166
Arlington, MA 02174
Balsam, Mr. Loren,
Custodian F/B/O Emily c/o Jeff Brandes, 60 1,862 1,693 169
Brandes.................. Maple Street, #3,
Cambridge, MA 02139
Barach, Michael I. ....... c/o Bessemer Venture 1,936 1,742 194
Partners,
1025 Old Country Road,
Suite 205, Westbury, NY
11590
Belisarius Corporation.... c/o Bessemer Venture 455 409 46
Partners,
1025 Old Country Road,
Suite 205, Westbury, NY
11590
Bessec Ventures IV L.P. .. c/o Bessemer Venture 48,618 43,756 4,862
Partners,
1025 Old Country Road,
Suite 205, Westbury, NY
11590
Bessemer Venture c/o Bessemer Venture
Investors L.P. .......... Partners, 13,687 12,318 1,369
1025 Old Country Road,
Suite 205, Westbury, NY
11590
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
Number of
Shares Number Number of
Beneficially of Shares
Owned Prior Shares Beneficially
Address of Selling to the Being Owned After
Name of Selling Stockholder Stockholder Offering Offered the Offering
--------------------------- ------------------------ ------------ ------- ------------
<C> <S> <C> <C> <C>
Bessemer Venture Partners IV L.P. ... 1025 Old Country Road, 48,618 43,756 4,862
Suite 205, Westbury, NY
11590
Brandes, Jeff........................ 60 Maple Street, #3, 19,369 17,608 1,761
Cambridge, MA 02139
Brimstone Island Co. L.P............. c/o Bessemer Venture 1,660 1,494 166
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Brownstein, Neill H.................. c/o Bessemer Venture 893 804 89
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Buescher, Robert H................... c/o Bessemer Venture 967 870 97
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Burgin, William T.................... c/o Bessemer Venture 1,660 1,494 166
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
BVP IV Special Situations L.P........ c/o Bessemer Venture 4,093 3,684 409
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Charles River Partnership VII L.P. .. 1000 Winter Street, 161,502 145,352 16,150
Suite 3300, Waltham, MA
02154
Cheng, Larry......................... 1400 Old Country Drive, 61 55 6
Suite 407, Westbury, NY
11590
Chin, Eric........................... 1701 North Point St., 1,676 1,524 152
#306, San Francisco, CA
94123
Cisco Systems, Inc................... 170 West Tasman Drive, 30,675 27,607 3,068
San Jose, CA 95134
Cohen, Rodney A. .................... c/o Bessemer Venture 297 267 30
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Cowan, David J....................... c/o Bessemer Venture 446 401 45
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Davis, Richard R..................... c/o Bessemer Venture 1,266 1,139 127
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
DeAnn R. Eliot as
Custodian F/B/O Sara L 8 James Way, Cambridge, 1,489 1,374
Montero-Eliot....................... MA 02141 115
DeBettencourt, Jason................. 835 Edgell Road, 15,086 13,715 1,371
Framingham, MA 01701
Debold, Joseph....................... 8 Cecelia Lane, 3,352 3,017 335
Pleasantville, NY 10570
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
Number of
Shares Number Number of
Beneficially of Shares
Owned Prior Shares Beneficially
Address of Selling to the Being Owned After
Name of Selling Stockholder Stockholder Offering Offered the Offering
--------------------------- ------------------------ ------------ ------- ------------
<C> <S> <C> <C> <C>
Doherty, Phyllis............. 20 Weathervane Road, 16,017 15,057 960
Canton, MA 02021
Draper Richards L.P.......... 50 Freemont Street, 13,072 11,765 1,307
Suite 3500,
San Francisco, CA 94105
Engel, Ferdinand............. 21 Joseph Road, 5,661 5,095 566
Northboro, MA 01532
Fidelity Investors II, c/o Anne Cooke, Fidelity
Limited Partnership......... Capital, 82 Devonshire 46,101 41,491 4,610
St., R25D, Boston,
MA 02109-3614
Forbes, Jr. Edward J......... 44 Highland Avenue, 1,340 1,256 84
Watertown, MA 02172
FTT Ventures, Limited........ c/o Anne Cooke, Fidelity 46,101 41,491 4,610
Capital, 82 Devonshire
St., R25D, Boston,
MA 02109-3614
Gabrieli Family Foundation... c/o Bessemer Venture 383 345 38
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Gabrieli, Christopher F.D. .. c/o Bessemer Venture 4,822 4,340 482
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Gennaro, Louis R............. c/o net.Genesis, Inc., 744 670 74
215 First Street,
Cambridge, MA 02140
Godfrey, Adam P.............. c/o Bessemer Venture 394 355 39
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Graham, Bruce................ 1400 Old Country Drive, 74 67 7
Suite 407, Westbury, NY
11590
Hardymon Family c/o Bessemer Venture
Limited Partnership......... Partners, 1025 Old 4,745 4,270 475
Country Road, Suite 205,
Westbury, NY 11590
House, Sr. Glenn D........... 43 Cider Hill Lane, 43,209 40,382 2,827
Sherborn, MA 01770
House, Teresa................ 43 Cider Hill Lane, 2,234 2,074 160
Sherborn, MA 01770
Hutchins, Wheeler &
Dittmar Profit Sharing c/o Hutchins, Wheeler &
Trust....................... Dittmar, 101 Federal 744 670 74
Street, Boston, MA 02110
Jaschke, Justin L............ c/o Verio, Inc., 9250 1,862 1,676 186
East Costilla Avenue,
Suite 400, Englewood, CO
80112
Lara, Marco.................. 21 Wiles Road, 14,527 13,206 1,321
Topsfield, MA 01983
Lawrence, Duane.............. 151 Lafayette Ave., #5, 1,117 1,029 88
Brooklyn, NY 11238
Levine, Paul H............... 22 Clarke Street, 8,939 8,154 785
Lexington, MA 02124
</TABLE>
14
<PAGE>
<TABLE>
<CAPTION>
Number of
Shares Number Number of
Beneficially of Shares
Owned Prior Shares Beneficially
Address of Selling to the Being Owned After
Name of Selling Stockholder Stockholder Offering Offered the Offering
--------------------------- ------------------------ ------------ ------- ------------
<C> <S> <C> <C> <C>
Lowe, Jacques.............. 46 Park Street, #17, 521 489 32
Newton, MA 02458
MacDonald, John G. ........ c/o Bessemer Venture 312 281 31
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Markowitz, Howard S........ c/o Bessemer Venture 186 167 19
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Mateos, Arthur............. 261 Broadway, Floor 1, 1,489 1,390 99
Arlington, MA 02174
McPartlin, Diane N......... c/o Bessemer Venture 290 261 29
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Mhatre, Ravi B............. c/o Bessemer Venture 650 585 65
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Minthorn, Pamela........... 1269 Poplar Avenue, 297 267 30
#405, Sunnyvale,
CA 94086
Mongeau, Richard........... 54 Washburn Ave., 11,174 10,615 559
Wellesley, MA 02481
Montero-Luque, Carlos E. .. 8 James Way, Cambridge, 14,527 13,761 766
MA 02141
Morgenthaler Venture 50 Public Square, Suite 92,027
Partners IV............... 2700, Cleveland, 82,824 9,203
OH 44113
Morse, Kenneth P........... 65 Greylock Road, 3,268 2,941 327
Wellesley, MA 02181
Nanavati, Chinmay.......... 9 Stony Brook Drive, 670 631 39
Apt. 8, Millis, MA 02054
Neogi, Depankar............ 14 Carolyn Road, 226 203 23
Wilmington, MA 01887
Park, Edward............... 1400 Old Country Drive, 93 84 9
Suite 407, Westbury, NY
11590
Prakash, Gautam A.......... c/o Bessemer Venture 1,200 1,080 120
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Quentin Corporation........ c/o Bessemer Venture 1,563 1,407 156
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Roriston, Robert J.S....... c/o Bessemer Venture 335 301 34
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Rosenberg, Jonathan B...... 59 Judkins Street, 248 223 25
Newtonville, MA 02160
Schnoor, Jr. William J. ... c/o Testa Hurwitz & 744 670 74
Thibeault, 125 High
Street, Boston, MA 02110
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
Number of
Shares Number Number of
Beneficially of Shares
Owned Prior Shares Beneficially
Address of Selling to the Being Owned After
Name of Selling Stockholder Stockholder Offering Offered the Offering
--------------------------- ------------------------ ------------ ------- ------------
<C> <S> <C> <C> <C>
Seaward, Gerald.............. 36 Cogswell Avenue, 223 201 22
Cambridge, MA 02140
Shah, Swapnil................ 467 Sudbury Road, 30,358 27,478 2,880
Concord, MA 01742
Shpirt, Leonid............... 7 Conant Road, Unit 68, 893 833 60
Winchester, MA 01742
Soni, Robi L................. c/o Bessemer Venture 530 477 53
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Sternlicht, Russell D........ c/o Bessemer Venture 223 201 22
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Strober, Joanna A............ c/o Bessemer Venture 223 201 22
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
The Glenn House Jr. 43 Cider Hill Lane,
Trust....................... Sherborn, MA 01770 1,117 1,037 80
The Kristin House Trust...... 43 Cider Hill Lane, 1,117 1,037 80
Sherborn, MA 01770
The Paul Levine Family 22 Clarke Street,
Limited Partnership, L.P. .. Lexington, MA 02124 3,128 2,815 313
Wasik, William R............. c/o Bessemer Venture 55 49 6
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Weng, Keith.................. 541 Hill Street, Apt. B, 15,719 14,293 1,426
San Francisco, CA 94114
Wigfall, Jessamine........... 108 Crawford Street, 223 208 15
Boston, MA 02121
Wignarajah, Naresh........... 24 Norris Street, 1,117 1,028 89
Cambridge, MA 02140
Williamson, Steven L......... c/o Bessemer Venture 595 535 60
Partners, 1025 Old
Country Road, Suite 205,
Westbury, NY 11590
Wills, Timothy F. ........... 865 Boylston Street, #3, 2,234 2,097 137
Newton, MA 02461
Yamane, Stanley.............. 14 Temple Street, E503, 15,086 13,715 1,371
Framingham, MA 01702
Comdisco, Inc.(1)............ 6111 North River Road, 13,458(1) 13,458(1) 0
Rosemont, IL 60018
</TABLE>
- --------
(1) Shares are subject to an immediately exercisable warrant held by Comdisco,
Inc. The warrant is not registered hereunder, only the shares underlying
the warrant.
16
<PAGE>
PLAN OF DISTRIBUTION
Inktomi will not receive any proceeds from the sale of the shares. The
shares may be sold from time to time by the selling shareholders, or by
pledgees, donees, transferees or other successors in interest. Such sales may
be made on one or more exchanges or in the over-the-counter market or
otherwise, at prices and at terms then prevailing or at prices related to the
then current market price, or in negotiated transactions. The shares may be
sold by one or more of the following: (a) a block trade in which the broker-
dealer so engaged will attempt to sell the shares as agent but may position and
resell a portion of the block as principal to facilitate the transaction; (b)
purchases by a broker-dealer as principal and resale by such broker-dealer for
its account pursuant to this prospectus; (c) an exchange distribution in
accordance with the rules of such exchange; and (d) ordinary brokerage
transactions and transactions in which the broker solicits purchasers. In
effecting sales, broker-dealers engaged by the selling shareholders may arrange
for other broker-dealers to participate in the resales.
In connection with distributions of the shares or otherwise, the selling
shareholders may enter into hedging transactions with broker-dealers. In
connection with such transactions, broker-dealers may engage in short sales of
the shares registered hereunder in the course of hedging the positions they
assume with selling shareholders. The selling shareholders may also sell shares
short and redeliver the shares to close out such short positions. The selling
shareholders may also enter into option or other transactions with broker-
dealers which require the delivery to the broker-dealer of the shares
registered hereunder, which the broker-dealer may resell or otherwise transfer
pursuant to this prospectus. The selling shareholder may also loan or pledge
the shares registered hereunder to a broker-dealer and the broker-dealer may
sell the shares so loaned or upon a default the broker-dealer may effect sales
of the pledged shares pursuant to this prospectus.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling shareholders in amounts to
be negotiated in connection with the sale. Such broker-dealers and any other
participating broker-dealers may be deemed to be "underwriters" within the
meaning of the Securities Act, in connection with such sales and any such
commission, discount or concession may be deemed to be underwriting discounts
or commissions under the Securities Act. In addition, any securities covered by
this prospectus which qualify for sale pursuant to Rule 144 may be sold under
Rule 144 rather than pursuant to this prospectus.
All costs, expenses and fees in connection with the registration of the
shares will be borne by Inktomi. Commissions and discounts, if any,
attributable to the sales of the shares will be borne by the selling
shareholders. The selling shareholders may agree to indemnify any broker-dealer
or agent that participates in transactions involving sales of the shares
against certain liabilities, including liabilities arising under the Securities
Act. Inktomi and the selling shareholders have agreed to indemnify certain
persons including broker-dealers or agents against certain liabilities in
connection with the offering of the shares, including liabilities arising under
the Securities Act.
17
<PAGE>
LEGAL MATTERS
The validity of the shares of common stock offered hereby has been passed
upon for Inktomi by Wilson Sonsini Goodrich & Rosati, Professional Corporation,
Palo Alto, California. As of the date of this prospectus, attorneys who are
members of or are employed by Wilson Sonsini Goodrich & Rosati and
participating in matters on behalf of Inktomi relating to this Registration
Statement, beneficially own an aggregate of 4,235 shares of Inktomi's Common
Stock.
EXPERTS
The consolidated financial statements of Inktomi Corporation as of September
30, 1997 and 1998, and for the period from February 2, 1996 (date of inception)
to September 30, 1996 and the years ended September 30, 1997 and 1998,
incorporated by reference in this prospectus and the Registration Statement,
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, which report is given on the authority of that
firm as experts in auditing and accounting.
18
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, payable by Inktomi in
connection with the sale of common stock being registered. All amounts are
estimates except the SEC registration fee.
<TABLE>
<CAPTION>
Amount to be
Paid
------------
<S> <C>
SEC registration fee......................................... $23,228
Printing expenses............................................ $15,000
Legal fees and expenses...................................... $15,000
Accounting fees and expenses................................. $10,000
Miscellaneous expenses....................................... $11,772
-------
Total...................................................... $75,000
=======
</TABLE>
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits a corporation to
include in its charter documents and in agreements between the corporation and
its directors and officers, provisions expanding the scope of indemnification
beyond that specifically provided by the current law.
Article X of Inktomi's Amended and Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permitted
under Delaware law.
Article VI of Inktomi's Bylaws provides for the indemnification of officers,
directors and third parties acting on behalf of the corporation to the fullest
extent permitted under the General Corporation Law of Delaware.
Inktomi has entered into indemnification agreements with its directors and
executive officers, in addition to indemnification provided for in Inktomi's
Bylaws, and intends to enter into indemnification agreements with any new
directors and executive officers in the future.
In addition, pursuant to the terms of the Agreement and Plan of
Reorganization entered into by Inktomi in connection with its acquisition of
WebSpective Software, Inc. ("WebSpective"), Inktomi has agreed to fulfill and
honor in all respects the obligations of WebSpective pursuant to certain
indemnification agreements between WebSpective and its directors and officers
(the "Indemnified Parties") as of the effective time of the merger that
effected such acquisition and the indemnification provisions under
WebSpective's Certificate of Incorporation or Bylaws as in effect immediately
prior to the merger. The Certificate of Incorporation and Bylaws of the
surviving corporation in the merger contain provisions with respect to
indemnification and exculpation from liability that are at least as favorable
to the Indemnified Parties as those contained in the Certificate of
Incorporation and Bylaws of WebSpective as in effect immediately prior to the
merger, which provisions will not be amended, repealed or otherwise modified
for a period of six years from the effective time of the acquisition in any
manner that would adversely affect the rights thereunder of any Indemnified
Party.
The Declaration of Registration Rights dated October 1, 1999, made by
Inktomi in connection with Inktomi's purchase of WebSpective provides that
Inktomi will indemnify the selling stockholders against certain liabilities,
including liabilities under the Securities Act.
II-1
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, or persons controlling Inktomi
pursuant to the foregoing provisions, Inktomi has been informed that in the
opinion of the SEC such indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable.
At present, there is no pending litigation or proceeding involving a
director, officer, employee, or other agent of Inktomi in which indemnification
is being sought, nor is Inktomi aware of any threatened litigation that may
result in a claim for indemnification by any director, officer, employee, or
other agent of Inktomi.
Item 16. Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
4.5 Declaration of Registration Rights dated October 1, 1999, granted
by Inktomi to certain individuals identified therein (incorporated
by reference under Inktomi's Current Report on Form 8-K dated
October 15, 1999, as amended November 5, 1999)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (previously filed)
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
(relating to financial statements of Inktomi Corporation)
23.2 Consent of Counsel (included in Exhibit 5.1) (previously filed)
24.1 Power of Attorney (previously filed)
</TABLE>
Item 17. Undertakings
Inktomi hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) To reflect in the prospectus any facts or events arising after
the effective date of the 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 the Registration Statement;
(c) 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;
provided, however, that paragraphs (a) and (b) above do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by Inktomi
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under 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.
4. That, for the purpose of determining any liability under the
Securities Act, each filing of Inktomi'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.
II-2
<PAGE>
5. To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Exchange Act; and, where interim financial information
required to be presented by Article 3 of Regulation S-X are not set forth
in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
6. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of Inktomi pursuant to the foregoing provisions, or otherwise,
Inktomi has been advised that in the opinion of the SEC 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 Inktomi
of expenses incurred or paid by a director, officer, or controlling person
of Inktomi 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, Inktomi 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Inktomi certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Mateo, State of California, on
the 9th day of November, 1999.
INKTOMI CORPORATION
/s/ Jerry M. Kennelly
By: _________________________________
Jerry M. Kennelly,
Vice President of Finance and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment to Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
Signature Title Date
/s/ David C. Peterschmidt President, Chief Executive
___________________________ Officer (Principal Executive November 9, 1999
David C. Peterschmidt Officer) and Chairman of the
Board of Directors
/s/ Jerry M. Kennelly Vice President of Finance and
___________________________ Chief Financial Officer November 9, 1999
Jerry M. Kennelly (Principal Financial
and Accounting Officer)
Frank Gill* Director
___________________________ November 9, 1999
Frank Gill
Alan F. Shugart* Director
___________________________ November 9, 1999
Alan F. Shugart
Eric A. Brewer* Director
___________________________ November 9, 1999
Eric A. Brewer
John A. Porter* Director
___________________________ November 9, 1999
John A. Porter
Frederic W. Harman* Director
___________________________ November 9, 1999
Frederic W. Harman
*By: /s/ Jerry M. Kennelly
-----------------------
Jerry M. Kennelly
As Attorney-in-fact
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
4.5 Declaration of Registration Rights dated October 1, 1999, granted by
Inktomi to certain individuals identified therein (incorporated by
reference under Inktomi's Current Report on Form 8-K dated October 15,
1999, as amended November 5, 1999)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(previously filed)
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
(relating to financial statements of Inktomi Corporation)
23.2 Consent of Counsel (included in Exhibit 5.1) (previously filed)
24.1 Power of Attorney (previously filed)
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 (333-89579) of our report dated October 16, 1998,
relating to the financial statements of Inktomi Corporation which appears in
Inktomi Corporation's 1998 Annual Report on Form 10-K and to the incorporation
by reference in this Registration Statement of our report dated October 16,
1998, except as to the pooling of interests with Impulse! Buy Network, Inc.,
which is as of April 30, 1999, and the pooling of interests of WebSpective
Software, Inc. which is as of October 1, 1999, relating to the supplementary
financial statements appearing in the Current Report on Form 8-K/A of Inktomi
Corporation date November 4, 1999.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of Inktomi Corporation (No. 333-89579) of our report
dated March 16, 1999, relating to the financial statements of WebSpective
Software, Inc., which appears in the Current Report on Form 8-K/A of Inktomi
Corporation dated November 4, 1999.
PricewaterhouseCoopers LLP
San Francisco, California
November 9, 1999
