<PAGE>
As filed with the Securities and Exchange Commission on May 25, 1999
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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DIGITAL RIVER, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 41-1901640
(State of Incorporation) (I.R.S. Employer Identification No.)
9625 WEST 76TH STREET, SUITE 150
EDEN PRAIRIE, MINNESOTA 55344
(612) 253-1234
(Address of principal executive offices)
1998 STOCK OPTION PLAN
NON-PLAN OPTION GRANT
(Full title of the plans)
JOEL A. RONNING
CHIEF EXECUTIVE OFFICER
9625 WEST 76TH STREET, SUITE 150
EDEN PRAIRIE, MINNESOTA 55344
(612) 253-1234
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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Copies to:
MICHAEL J. SULLIVAN, ESQ.
COOLEY GODWARD LLP
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CA 94111
(415) 693-2000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING PRICE AMOUNT OF
BE REGISTERED REGISTERED SHARE (1) (1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Stock Options and Common
Stock (par value $0.01) 1,011,296 shares $29.1875 - $30.84375 $31,090,640 $8,644
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the
Securities Act of 1933, as amended. The offering price per share and
aggregate offering price for the unissued stock options are based upon
the average of the high and low prices of Registrant's Common Stock as
reported on the Nasdaq National Market System on May 21, 1999. The
offering price per share and aggregate offering price for the
outstanding stock options are based upon the exercise prices of such
options. The following chart illustrates the calculation of the
registration fee:
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<TABLE>
<CAPTION>
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OFFERING PRICE PER AGGREGATE OFFERING
TITLE OF SHARES NUMBER OF SHARES SHARE PRICE
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<S> <C> <C> <C>
Shares issuable pursuant to unissued stock options under to the 950,000 $30.84375 $29,301,563
1998 Stock Option Plan
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Shares issuable pursuant to an outstanding stock option granted 61,296 $29.1875 $1,789,077
outside the 1998 Stock Option Plan
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Total 1,011,296 - $31,090,640
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</TABLE>
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
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<PAGE>
INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENT ON FORM S-8 NO. 333-67085
The contents of Registration Statement on Form S-8 No. 333-67085
filed with the Securities and Exchange Commission on November 10, 1998 are
incorporated by reference herein.
EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
4.1 (1) Amended and Restated Certificate of Incorporation of the Company.
4.2 (1) Amended and Restated Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1 (1) 1998 Stock Option Plan.
99.2 (2) Form of Incentive Stock Option Agreement under the 1998 Stock
Option Plan.
99.3 (2) Form of Nonincentive Stock Option Agreement under the 1998 Stock
Option Plan.
99.4 (2) Form of Non-Statutory Stock Option Granted Outside of the 1998
Stock Option Plan.
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(1) Documents incorporated by reference from the Company's Registration
Statement on Form S-1, as amended No. 333-56787, filed with the Securities
and Exchange Commission on June 12, 1998.
(2) Documents incorporated by reference from the Company's Registration
Statement on Form S-8 No. 333-67085 filed with the Securities and Exchange
Commission on November 10, 1998.
1
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Eden Prairie, State of
Minnesota, on May 25, 1999.
DIGITAL RIVER, INC.
BY: /s/ JOEL A. RONNING
---------------------------------------------
Joel A. Ronning
CHIEF EXECUTIVE OFFICER AND DIRECTOR
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joel A. Ronning and Robert E. Strawman
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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/ JOEL A. RONNING Chief Executive Officer and Director May 25, 1999
- -------------------------------------- (Principal Executive Officer)
Joel A. Ronning
/s/ ROBERT E. STRAWMAN Chief Financial Officer and Treasurer May 25, 1999
- -------------------------------------- (Principal Financial and Accounting
Robert E. Strawman Officer)
/s/ PERRY W. STEINER President and Director May 25, 1999
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Perry W. Steiner
/s/ WILLIAM LANSING Director May 25, 1999
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William Lansing
/s/ THOMAS F. MADISON Director May 25, 1999
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Thomas F. Madison
/s/ CHARLES E. REESE, JR. Director May 25, 1999
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Charles E. Reese, Jr.
/s/ CHRISTOPHER J. SHARPLES Director May 25, 1999
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Christopher J. Sharples
/s/ J. PAUL THORIN Director May 25, 1999
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J. Paul Thorin
/s/ TIMOTHY C. CHOATE Director May 25, 1999
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Timothy C. Choate
</TABLE>
2
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 (1) Amended and Restated Certificate of Incorporation of the Company.
4.2 (1) Amended and Restated Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1 (1) 1998 Stock Option Plan.
99.2 (2) Form of Incentive Stock Option Agreement under the 1998 Stock
Option Plan.
99.3 (2) Form of Nonincentive Stock Option Agreement under the 1998 Stock
Option Plan.
99.4 (2) Form of Non-Statutory Stock Option Granted Outside of the 1998
Stock Option Plan.
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(1) Documents incorporated by reference from the Company's Registration
Statement on Form S-1, as amended No. 333-56787, filed with the Securities
and Exchange Commission on June 12, 1998.
(2) Documents incorporated by reference from the Company's Registration
Statement on Form S-8 No. 333-67085 filed with the Securities and Exchange
Commission on November 10, 1998.
3
<PAGE>
May 25, 1999 Exhibit 5.1
Digital River, Inc.
9625 West 76th Street, Suite 150
Eden Prairie, Minnesota 55344
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Digital River, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to an aggregate of 1,011,296
shares of the Company's Common Stock, $0.01 par value (the "Shares"), with
respect to (a) 950,000 of the Shares issuable pursuant to its 1998 Stock
Option Plan (the "Plan") and (b) 61,296 of the Shares issuable pursuant to
outstanding options granted outside of the Plan (the "Non-Plan Option
Agreements").
In connection with this opinion, we have examined the Registration Statement
and related Prospectus, the Company's Amended and Restated Certificate of
Incorporation and Bylaws, and such other documents, records, certificates,
memoranda and other instruments as we deem necessary as a basis for this
opinion. We have assumed the genuineness and authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies thereof, and the due execution and delivery of all
documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Non-Plan Option Agreements, the Registration Statement and related
Prospectus, will be validly issued, fully paid, and nonassessable (except as
to shares issued pursuant to certain deferred payment arrangements, which
will be fully paid and nonassessable when such deferred payments are made in
full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ MICHAEL J. SULLIVAN
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Michael J. Sullivan
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 27, 1999
included in Digital River, Inc.'s Form 10-K for the year ended December 31,
1998 and to all references to our Firm included in this Registration
Statement.
/s/ ARTHUR ANDERSEN LLP
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ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
May 24, 1999
