<PAGE>
As filed with the Securities and Exchange Commission on August 8, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
RESONATE INC.
(Exact name of Registrant as specified in its charter)
Delaware 94-3228496
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
385 Moffet Park Drive
Sunnyvale, California 94089
(408) 548-5500
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
RESONATE INC. 1996 STOCK PLAN
RESONATE INC. 2000 STOCK PLAN
RESONATE INC. 2000 EMPLOYEE STOCK PURCHASE PLAN
-------------------
Kenneth Schroeder
Chief Executive Officer
385 Moffet Park Drive
Sunnyvale, California 94089
(408) 548-5500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------------
Copies to:
Aaron J. Alter, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount to be Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Registered Registered (1) Offering Price Per Aggregate Offering Registration
Share (2) Price (2) Fee (2)
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.0001 par value issuable:
-----------------------------------------------------------------------------------------------------------------------------------
-Upon exercise of options under 1996 Stock Plan 3,986,858 (2) $ 48,129,454 $12,706.18
-----------------------------------------------------------------------------------------------------------------------------------
-Upon exercise of options under 2000 Stock Plan 3,200,000 $ 40.1875 $128,600,000 $33,950.40
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-Upon exercise of options under 2000 Employee 1,000,000 $ 40.1875 $ 40,187,500 $10,609.50
Stock Purchase Plan
-----------------------------------------------------------------------------------------------------------------------------------
Total 8,186,858 $216,916,954 $57,266.08
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable by reason of any stock dividend, stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the Registrant's outstanding shares of Common Stock.
(2) The Proposed Maximum Offering Price Per Share represents a weighted average
of the following estimates calculated in accordance with Rule 457(h) under
the Securities Act of 1933, as amended (the "Securities Act"). With respect
to 3,323,472 shares subject to outstanding options to purchase Common Stock
under the 1996 Stock Plan described above, the Proposed Maximum Offering
Price Per Share is equal to the weighted average exercise price of $6.46
per share pursuant to Rule 457(h) under the Securities Act. With respect to
4,863,386 shares of Common Stock available for future grant under the 1996
Stock Plan, 2000 Stock Plan and 2000 Employee Stock Purchase Plan, the
estimated Proposed Maximum Offering Price Per Share was determined pursuant
to Rule 457(c) under the Securities Act to be equal to the average between
the high and low price reported in the Nasdaq National Market on August 7,
2000, which average was $40.1875 per share.
-------------------
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
1. The Registrant's Form S-1 (File No. 333-31730), filed with the
Commission on March 3, 2000, as amended on July 10, 2000, July 24, 2000 and
August 1, 2000.
2. The Registrant's Prospectus, filed with the Commission on August
3, 2000, pursuant to Rule 424(b) promulgated under the Securities Act of 1933,
as amended (the "Securities Act").
3. The description of Registrant's Common Stock contained in
Registrant's Registration Statement on Form 8-A filed with the Commission on
July 25, 2000.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration
Statement and prior to the filing of a post-effective amendment indicating that
all securities offered have been sold or deregistering 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.
-----------------------------------------
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 IX of the Registrant's Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law.
Article VI of the Registrant's Bylaws provides for the
indemnification of officers, directors and third parties acting on behalf of the
Registrant if such person acted in good faith and in a manner reasonably
believed to be in and not opposed to the best interest of the Registrant, and,
with respect to any criminal action or proceeding, the indemnified party had no
reason to believe his or her conduct was unlawful.
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The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Registrant's Bylaws, and intends to enter into indemnification agreements
with any new directors and executive officers in the future.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
Exhibit Document
Number
------------------- ---------------------------------------------------------
4.1 1996 Stock Plan and form of agreement thereunder.
4.2* 2000 Stock Plan and form of agreement thereunder.
4.3* 2000 Employee Stock Purchase Plan and form of agreement
thereunder.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati with
respect to the securities being registered.
23.1 Consent of Independent Auditors.
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (See page II-5).
___________________
* Previously filed as an exhibit to Registrant's Registration Statement on Form
S-1 (File No. 333-31730), declared effective August 2, 2000.
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, 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.
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(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 provisions described in Item 6 hereof, 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.
II-3
<PAGE>
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 Sunnyvale, California on August 8, 2000.
RESONATE INC.
By:/s/ Kenneth Schroeder
-------------------------------------
Kenneth Schroeder
President and Chief Executive Officer
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<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Kenneth Schroeder and Robert C.
Hausmann and each of them acting individually, as his attorneys-in-fact, each
with full power of substitution, for him in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorney to any and all amendments
said Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
------------------------- -------------------------------------- ----------------------------
<S> <C> <C>
/s/ Kenneth Schroeder President, Chief Executive Officer and August 8, 2000
------------------------- Director (Principal Executive Officer)
Kenneth Schroeder
/s/ Robert C. Hausemann Chief Financial Officer (Principal August 8, 2000
------------------------- Financial and Accounting Officer)
Robert C. Hausmann
/s/ Gordon A. Campbell Vice Chairman of the Board and Director August 8, 2000
-------------------------
Gordon A. Campbell
/s/ Christopher C. Marino Director August 8, 2000
-------------------------
Christopher C. Marino
/s/ I. Robert Greene Director August 8, 2000
-------------------------
I. Robert Greene
Director
-------------------------
Robert J. Finocchio, Jr.
Director
-------------------------
Russell Siegelman
/s/ John S. McFarlane Director August 8, 2000
-------------------------
John S. McFarlane
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
EXHIBIT INDEX
Exhibit Document
Number
-------------- ---------------------------------------------------------------
4.1 1996 Stock Plan and form of agreement thereunder.
4.2* 2000 Stock Plan and form of agreement thereunder.
4.3* 2000 Employee Stock Purchase Plan and form of agreement
thereunder.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati with respect to the
securities being registered.
23.1 Consent of Independent Auditors.
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (See page II-5).
______________
* Previously filed as an exhibit to Registrant's Registration Statement on Form
S-1 (File No. 333-31730), declared effective August 2, 2000.
