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As filed with the Securities and Exchange Commission on August , 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CRITICAL PATH, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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320 FIRST STREET
CALIFORNIA SAN FRANCISCO, CALIFORNIA 94105 91-17883000
(STATE OF INCORPORATION (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (I.R.S. EMPLOYER)
IDENTIFICATION NO.)
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NETMOSPHERE 1997 STOCK OPTION PLAN
NETMOSPHERE 1999 EQUITY INCENTIVE PLAN
(FULL TITLE OF THE PLANS)
DOUGLAS T. HICKEY
CHIEF EXECUTIVE OFFICER
CRITICAL PATH, INC.
320 1ST STREET
SAN FRANCISCO, CALIFORNIA 94105
(415) 808-8800
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
Copy to:
MARK L. REINSTRA, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE PRICE FEE
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Common Stock, par value $0.001 to be
issued upon exercise of options granted
and outstanding and options authorized
and unissued under the Netmosphere 1997
Stock Option Plan...................... 20,268 shares $ 5.24 (2) $2,741,067 $723.64
Common Stock, par value $0.001 to be
issued upon exercise of options granted
and outstanding and options authorized
and unissued under the Netmosphere 1999
Equity Incentive Plan.................. 165,048 shares $20.57 (3) $ 106,223 $ 28.04
Total........................ 185,316 shares $2,847,290 $751.68
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan being registered pursuant
to this Registration Statement by reason of any stock dividend, stock
split, recapitalization or any 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) Computed in accordance with Rules 457(h) and 457(c) under the Securities
Act of 1933. Such computation is based on the weighted average exercise
price of $3.46 per share covering 19,563 authorized but unissued shares
that are subject to options that have been granted and the estimated
exercise price of $54.66 per share covering 705 authorized but unissued
shares that are subject to options that have not been granted. The $54.66
estimated exercise price was computed by averaging the high and low prices
of a share of Critical Path, Inc. Common Stock as reported on the Nasdaq
National Market on August 23, 2000.
(3) Computed in accordance with Rules 457(h) and 457(c) under the Securities
Act of 1933. Such computation is based on the weighted average exercise
price of $18.37 per share covering 125,155 authorized but unissued shares
that are subject to options that have been granted and the estimated
exercise price of $54.66 per share covering 8,070 authorized but unissued
shares that are subject to options that have not been granted. The $54.66
estimated exercise price was computed by averaging the high and low prices
of a share of Critical Path, Inc. Common Stock as reported on the Nasdaq
National Market on August 23, 2000.
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CRITICAL PATH, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by Critical Path, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "SEC") are hereby
incorporated by reference in this Registration Statement:
(a) The Registrant's Current Report on Form 8-K, dated August 23, 2000;
(b) The Registrant's Current Report on Form 8-K/A, dated March 8, 2000;
(c) The Registrant's Current Report on Form 8-K, dated February 3, 2000;
(d) The Registrant's Annual Report on Form 10-K/A for the fiscal year
ended December 31, 1999;
(e) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000;
(f) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2000; and
(g) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, dated February 1, 1999.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, on or after the date
of this Registration Statement prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of the filing of such documents.
Any statement contained in this Registration Statement or in a document
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any subsequently
filed document that is deemed to be incorporated by reference in this
Registration Statement modifies or supersedes such statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
The Registrant's Amended and Restated Articles of Incorporation limit the
liability of the Registrant's directors for monetary damages to the maximum
extent permitted by California law. Such limitation of liability has no effect
on the availability of equitable remedies, such as injunctive relief or
rescission.
The Registrant's Amended and Restated Bylaws provide that the Registrant
will indemnify its directors and officers and may indemnify its employees and
agents (other than officers and directors) against certain liabilities to the
maximum extent permitted by California law. The Registrant has entered into
indemnification agreements with each of its current directors and officers and
certain of its key employees that provide for indemnification of, and
advancement of expenses to, such persons to the maximum extent permitted by
California law, including by reason of action or inaction occurring in the past
and circumstances in which indemnification and advancement of expenses are
discretionary under California law.
At the present time, there is no pending litigation or proceeding involving
a director, officer, employee or other agent of the Registrant in which
indemnification would be required or permitted. The Registrant is not aware of
any threatened litigation or proceeding that may result in a claim for such
indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati
10.1 Netmosphere 1997 Stock Option Plan
10.2 Netmosphere 1999 Equity Incentive Plan
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Arthur Andersen LLP, Independent Accountants
23.3 Consent of Wilson Sonsini Goodrich & Rosati (contained in Exhibit 5.1)
24.1 Power of Attorney (see signature page)
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Item 9. Undertakings.
1. The 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.
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(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.
2. The 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 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to law, the Registrant's Articles of Incorporation,
Bylaws or indemnification agreements, the Registrant has been advised that in
the opinion of the 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 a successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, 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 of 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 San Francisco, State of California, on this 23rd day
of August, 2000.
CRITICAL PATH, INC.
By: /s/ DOUGLAS T. HICKEY
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Douglas T. Hickey
Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Douglas T. Hickey and Mark J. Rubash, or either
of them, his or her attorney-in-fact, with the power of substitution, for him or
her in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in- fact, or his
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 below by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ DOUGLAS T. HICKEY Chief Executive Officer and Director August 23, 2000
--------------------------------------------- (Principal Executive Officer)
Douglas T. Hickey
/s/ MARK J. RUBASH Executive Vice-President, Chief August 23, 2000
--------------------------------------------- Financial Officer (Principal Financial
Mark J. Rubash and Accounting Officer)
/s/ DAVID C. HAYDEN Chairman of the Board August 23, 2000
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David C. Hayden
/s/ CHRISTOS COTSAKOS Director August 23, 2000
---------------------------------------------
Christos M. Cotsakos
/s/ LISA GANSKY Director August 23, 2000
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Lisa Gansky
/s/ KEVIN HARVEY Director August 23, 2000
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Kevin R. Harvey
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SIGNATURE TITLE DATE
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Director August 23, 2000
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James A. Smith
/s/ G. ZACHARY Director August 23, 2000
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George Zachary
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati
10.1 Netmosphere 1997 Stock Option Plan
10.2 Netmosphere 1999 Equity Incentive Plan
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Arthur Andersen LLP, Independent Accountants
23.3 Consent of Wilson Sonsini Goodrich & Rosati (contained in Exhibit 5.1)
24.1 Power of Attorney (see signature page)
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