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As filed with the Securities and Exchange Commission on July 24, 2000
Registration No. 333-
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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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INKTOMI CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3238130
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
4100 E. THIRD AVENUE
FOSTER CITY, CA 94404
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ULTRASEEK CORPORATION STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
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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, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
KENTON J. KING
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
525 UNIVERSITY AVENUE
PALO ALTO, CA 94301
(650) 470-4500
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.001 per share par
value: To be issued under
Ultraseek Corporation Stock Option Plan... 218,028 shares $127.2815(1) $27,750,931(1) $7,326.25
===================================================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
computing the amount of the registration fee based upon the average of the
high and low sales prices of the Common Stock as reported on the Nasdaq
National Market on July 19, 2000.
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PART I: INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. Plan information*
ITEM 2. Registrant information and Employee Plan Annual Information*
*The document(s) containing the information specified in Part I of Form S-8 have
been or will be sent or given to employees as specified by Rule 428(b)(1) under
the Securities Act of 1933, as amended.
PART II: INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE [DAN - I NEED HELP WITH THESE.]
Inktomi Corporation hereby incorporates by reference in this registration
statement the following documents:
1. Inktomi's Annual Report on Form 10-K for the fiscal year ended
September 30, 1999;
2. Inktomi's Quarterly Report on Form 10-Q for the fiscal quarter ended
January 31, 2000;
3. Inktomi's Quarterly Report on Form 10-Q for the fiscal quarter ended
April 30, 2000;
4. Inktomi's Current Report on Form 425 dated June 9, 2000 relating to
the acquisition of Ultraseek Corporation;
5. Inktomi's Current Report on Form 8-K dated October 15, 1999 relating
to Inktomi's acquisition of Webspective Software, Inc.;
6. Inktomi's Current Report on Form 8-K dated July 14, 2000 relating
to Inktomi's adoption of its Shareholders' Rights Plan;
7. Inktomi's Current Report on Form 8-K dated December 3 1999 relating to
Inktomi's stock split;
8. The description of Inktomi's Common Stock as contained in its
Registration Statement on Form 8-A as filed with the Securities and
Exchange Commission on May 22, 1998.
All documents subsequently filed by Inktomi pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment to this registration statement which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
in this registration statement and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein will be deemed to be modified
or superseded for purposes of this registration statement to the extent a
statement contained herein or in any subsequently filed document that is or is
deemed to be incorporated by reference herein modifies or supersedes such
previous statement. Any such statement so modified or superseded will not be
deemed to constitute a part of this registration statement, except as so
modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of common stock offered hereby has been passed
upon for Inktomi by Skadden, Arps, Slate, Meagher & Flom LLP, Professional
Corporation, Palo Alto, California. As of the date of this prospectus, attorneys
who are members of or are employed by Skadden, Arps, Slate, Meagher & Flom LLP,
and participating in matters on behalf of Inktomi relating to this Registration
Statement do not beneficially own any shares of Inktomi's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the Delaware General Corporation Law, or the DGCL, as
amended, allows a corporation to eliminate the personal liability of directors
of a corporation to the corporation or its stockholders for monetary damaages
for a breach of fiduciary duty as a direct, except where the director breached
his duty of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authroized the payment of a dividend, or
approved a stock repurchase in violation of Delaware corporate law or obtained
an improper personal benefit.
Section 145 of the DGCL provides, among other things, that Inktomi may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of Inktomi) by reason of the fact that the person
is or was director, officer, agent or employee of Inktomi or is or was serving
at Inktomi's request as a director, officer, agent, or employee of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' ties, judgment, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with the
action, suit or proceeding. The power to indemnify applies (a) if the person is
successful on the merits or otherwise in defense of any action, suit or
proceeding, or (b) if the person acted in good faith and in a manner he
reasonably believed to be in the best interest, or not opposed to the best
interest, of Inktomi, and with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The power to indemnify
applies to actions brought by or in the right of Inktomi as well, but only to
the extent of defense expenses (including attorneys' fees but excluding amounts
paid in settlement) actually and reasonably incurred and not to any satisfaction
of judgment or settlement of the claim itself, and with the further limitation
that in these actions no indemnification shall be made in the event of any
adjudication of negligence or misconduct in the performance of his duties to
Inktomi, unless the court believes that in light of all the circumstances
indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director, who
willfully or negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or redemption, may be held liable for these actions. A
director who was either absent when the unlawful actions were approved or
dissented at the time, may avoid liability by causing his or her dissent to
these actions to be entered in the books containing the minutes of the meetings
of the board of directors at the time the action occurred or immediately after
the absent director receives notice of the unlawful acts.
Article X of Inktomi's Amended and Restated Certificate of Incorporation
includes a provision that eliminates the personal liability of its directors for
monetary damages for breach of fiduciary duty as a director to the fullest
extent permitted under the DGCL.
<PAGE>
Article VI of Inktomi's Bylaws provides for the indemnification of
officers, directors, employees and agents of Inktomi to the
fullest extent permitted under the DGCL.
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.
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 Securities and Exchange Commission 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 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See Index to Exhibits.
ITEM 9. UNDERTAKINGS
(a) Rule 415 offering. 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, each such post-effective amendment
shall be deemed to be a new registration
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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) Filing incorporating subsequent Exchange Act documents by reference
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) Request for acceleration of effective date or filing of registration
statement on Form S-8;
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Foster City, State of California, on this 24th day of
July, 2000.
INKTOMI CORPORATION
By: /s/ Jerry M. Kennelly
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Jerry M. Kennelly, Vice President of
Finance and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David C. Peterschmidt and Jerry M.
Kennelly, and each of them, as his or her attorney-in-fact, with full power of
substitution in each, 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 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ David C. Peterschmidt
--------------------------------------------- President, Chief Executive Officer and July 24, 2000
David C. Peterschmidt Chairman (Principal Executive Officer)
/s/ Jerry M. Kennelly
--------------------------------------------- Senior Vice President and Chief Financial July 24, 2000
Jerry M. Kennelly Officer (Principal Financial and Accounting
Officer)
/s/ Eric A. Brewer
--------------------------------------------- Director July 24, 2000
Eric A. Brewer
/s/ Frank Gill
--------------------------------------------- Director July 24, 2000
Frank Gill
/s/ Fredric W. Harman
--------------------------------------------- Director July 24, 2000
Fredric W. Harman
/s/ John A. Porter
--------------------------------------------- Director July 24, 2000
John A. Porter
/s/ Alan F. Shugart
--------------------------------------------- Director July 24, 2000
Alan F. Shugart
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENTS
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<S> <C>
4.1 Ultraseek Corporation Stock Option Plan and form of agreement thereunder
5.1 Opinion of Skadden, Arps, Slate, Meagher and Flom LLP
23.1 Consent of Skadden, Arps, Slate, Meagher and Flom LLP (included in Exhibit 5.1)
23.2 Consent of PriceWaterhouseCoopers LLP
24.1 Power of Attorney (included on signature page)
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</TABLE>
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