<PAGE>
As filed with the Securities and Exchange Commission on September 1, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DITECH COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 94-2935531
(State of Incorporation) (I.R.S. Employer Identification No.)
----------------------
825 E. MIDDLEFIELD ROAD
MOUNTAIN VIEW, CA 94043
(Address of principal executive offices)
----------------------
1998 STOCK OPTION PLAN
1997 STOCK OPTION PLAN
1999 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
TIMOTHY K. MONTGOMERY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DITECH COMMUNICATIONS CORPORATION
825 E. MIDDLEFIELD ROAD
MOUNTAIN VIEW, CA 94043
(650) 623-1300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------
COPIES TO:
ANDREI M. MANOLIU, ESQ.
BRETT D. WHITE, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306-2155
(650) 843-5000
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------- ------------------------- -------------------------- --------------------------- ----------------------
Title of Securities Proposed Maximum Offering Proposed Maximum Aggregate Amount of
to be Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee
- ---------------------------- ------------------------- -------------------------- --------------------------- ----------------------
<S> <C> <C> <C> <C>
(see Notes to
Calculation of
Common Stock 1,538,800 shares Registration Fee) $30,239,384.00 $8,407.00
- ---------------------------- ------------------------- -------------------------- --------------------------- ----------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) promulgated under the
Securities Act of 1933, as amended (the "Securities Act"). The price
per share and aggregate offering price are based upon (a) the weighted
average exercise price, for shares subject to outstanding options
granted by Ditech Communications Corporation (the "Company") under (i)
the 1997 Stock Option Plan, (ii) the 1998 Stock Option Plan, and (iii)
the 1999 Non-Employee Directors' Stock Option Plan or (b) the average
of the high and low prices of the Company's Common Stock as reported on
the Nasdaq Stock Market for August 26, 1999, for shares reserved for
future issuance pursuant to (i) the 1997 Stock Option Plan, (ii) the
1998 Stock Option Plan, (iii) the 1999 Non-Employee Directors' Stock
Option Plan and (iv) the 1999 Employee Stock Purchase Plan (pursuant to
Rule 457(c) under the Securities Act).
<PAGE>
NOTES TO CALCULATION OF REGISTRATION FEE
The chart below details the calculations of the registration fee:
<TABLE>
<CAPTION>
TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER AGGREGATE OFFERING
-------------- ---------------- SHARE PRICE
----- -----
<S> <C> <C> <C>
Shares issuable pursuant to
outstanding options under the 1997
Stock Option Plan 433,637 $0.929 $402,849.00
Shares reserved for future issuance
pursuant to the 1997 Stock Option
Plan - - -
Shares issuable pursuant to
outstanding options under the 1998
Stock Option Plan 660,689 $10.574 $6,986,126.00
Shares reserved for future issuance
pursuant to the 1998 Stock Option
Plan 211,141 $51.41 $10,854,759.00
Shares issuable pursuant to
outstanding options under the 1999
Non-Employee Directors' Stock Option
Plan - - -
Shares reserved for future issuance
pursuant to the 1999 Non-Employee
Directors' Stock Option Plan 100,000 $51.41 $5,141,000.00
Shares reserved for issuance
pursuant to the 1999 Employee Stock
Purchase Plan 133,333 $51.41 $6,854,650.00
Proposed Maximum Offering Price $30,239,384.00
Registration Fee $8,407.00
</TABLE>
- --------------------------------------------------------------------------------
Appropriate date of commencement of proposed sale to the public: as soon as
practicable after this Registration Statement becomes effective.
<PAGE>
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Ditech Communications Corporation, a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission are incorporated by reference into this Registration Statement:
(a) The final prospectus filed under Rule 424(b) of the Securities Act
contained in the Company's Registration Statement on Form S-1 (File No.
333-75063), filed June 9, 1999 under the Securities Act including any amendments
or reports filed for the purpose of updating such prospectus; and
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed May 28, 1999, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including
any amendments or reports filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of the Common Stock offered hereby will be
passed upon for the Company by Cooley Godward LLP, Palo Alto, California
("Cooley Godward").
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the
director's "duty of care." While this statute does not change directors' duty
of care, it enables corporations to limit available relief to equitable
remedies such as injunction or rescission. The statute has no effect on a
director's duty of loyalty or liability for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law,
illegal payment of dividends or stock redemptions or repurchases, or for any
transaction from which the director derives an improper personal benefit. As
permitted by the statute, the Company has adopted provisions in its
Certificate of Incorporation which eliminate to the fullest extent
permissible under Delaware law the personal liability of its directors to the
Company and its stockholders for monetary damages for breach or alleged
breach of their duty of care.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers, directors, employees and agents
of a corporation. The Bylaws of the Company provide for indemnification of
its directors, officers, employees and agents to the full extent permitted by
under Delaware law, including those circumstances in which indemnification
would otherwise be discretionary under Delaware law. The Company's Bylaws
also empower it to enter into indemnification agreements with its directors
and officers and to purchase insurance on behalf of any person whom it is
required or permitted to indemnify. The Company has entered into agreements
with its directors and certain of its executive officers that require the
Company to indemnify such persons to the fullest extent permitted under
Delaware law against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred (including expenses of a derivative
action) in connection with any proceeding, whether actual or threatened, to
which any such person may be made a party by reason of the fact that such
person is or was a director or an executive officer of the Company or any of
its affiliated enterprises. The indemnification agreements also set forth
certain procedures that will apply in the event of a claim for
indemnification thereunder.
Section 145 of the General Corporation Law of the State of Delaware
provides for indemnification in terms sufficiently broad to indemnify such
individuals, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act.
1.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER
3.1* Amended and Restated Certificate of Incorporation.
3.2* Bylaws.
4.1* Specimen Stock Certificates.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages.
99.1* 1997 Stock Option Plan.
99.2* Form of Option Agreement under the 1997 Stock Option Plan.
99.3* 1998 Stock Option Plan.
99.4* Form of Option Agreement under the 1998 Stock Option Plan.
99.5* 1999 Non-Employee Directors' Stock Option Plan.
99.6* Form of Option Agreement under the 1999 Non-Employee Directors'
Stock Option Plan.
99.7* 1999 Employee Stock Purchase Plan.
* Documents incorporated by reference from the Company's Registration Statement
on Form S-1, as amended (333-75063), declared effective by the Commission on
June 9, 1999.
ITEM 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (Section. 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
2.
<PAGE>
(iii) 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)(i) and (a)(ii) 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 the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) 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 herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) 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 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 herein, 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 the foregoing provisions, or otherwise, 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 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.
3.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, as amended, the
Company 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 Mountain View, State of Delaware, on August 31,
1999.
DITECH COMMUNICATIONS CORPORATION
a Delaware corporation
By: /s/ Timothy K. Montgomery
---------------------------------
Timothy K. Montgomery
Title: Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy K. Montgomery and William J.
Tamblyn, 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 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, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
/s/ Timothy K. Montgomery Chief Executive Officer August 31, 1999
- -------------------------------- and President
TIMOTHY K. MONTGOMERY
/s/ William J. Tamblyn Chief Financial Officer August 31, 1999
- -------------------------------- (Principal Financial
WILLIAM J. TAMBLYN and Accounting Officer)
Chairman of the August 31, 1999
- -------------------------------- Board of Directors
PONG C. LIM
Director August 31, 1999
- --------------------------------
GREGORY M. AVIS
/s/ Peter Y. Chung Director August 31, 1999
- --------------------------------
PETER Y. CHUNG
/s/ William A. Hasler Director August 31, 1999
- --------------------------------
WILLIAM A. HASLER
/s/ Kenneth E. Jones Director August 31, 1999
- --------------------------------
KENNETH E. JONES
/s/ George J. Turner Director August 31, 1999
- --------------------------------
GEORGE J. TURNER
4.
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER
3.1* Amended and Restated Certificate of Incorporation.
3.2* Bylaws.
4.1* Specimen Stock Certificates.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages.
99.1* 1997 Stock Option Plan.
99.2* Form of Option Agreement under the 1997 Stock Option Plan.
99.3* 1998 Stock Option Plan.
99.4* Form of Option Agreement under the 1998 Stock Option Plan.
99.5* 1999 Non-Employee Directors' Stock Option Plan.
99.6* Form of Option Agreement under the 1999 Non-Employee Directors'
Stock Option Plan.
99.7* 1999 Employee Stock Purchase Plan.
* Documents incorporated by reference from the Company's Registration
Statement on Form S-1, as amended (333-75063), declared effective by the
Commission on June 9, 1999.
<PAGE>
EXHIBIT 5.1
August 31, 1999
Ditech Communications Corporation
825 E. Middlefield Road
Mountain View, CA 94043
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Ditech Communications Corporation (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 1,538,800
shares of the Company's Common Stock (the "Shares") pursuant to its 1998 Stock
Option Plan, 1997 Stock Option Plan, 1999 Non-Employee Directors' Stock Option
Plan and 1999 Employee Stock Purchase Plan (the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your 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 Plans, the
Registration Statement and related Prospectuses, 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/ Brett D. White
-----------------------------
Brett D. White
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated May 21, 1999 relating to the
financial statements, which appears in Ditech Communication Corporation's
Registration Statement on Form S-1 dated June 9, 1999.
PricewaterhouseCoopers LLP
San Jose, California
August 30, 1999
