<PAGE>
As filed with the Securities and Exchange Commission on August 7, 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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DITECH COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 94-3086355
State of Incorporation) (I.R.S. Employer Identification No.)
825 E. MIDDLEFIELD ROAD
MOUNTAIN VIEW, CA 94043
(650) 623-1300
(Address of principal executive offices)
ATMOSPHERE NETWORKS, INC. 1997 STOCK PLAN
--------------
INDIVIDUAL STOCK OPTION GRANT OUTSIDE OF A 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:
BRETT D. WHITE, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CALIFORNIA 94306
(650) 843-5000
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF REGISTRATION
REGISTERED REGISTERED OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE FEE (1)
-------------------------- ------------- ------------------------ ------------------------ ----------------------
<S> <C> <C> <C> <C>
Common Stock (par value
$0.001)(2) 122,236 $34.75(3) $4,247,701 $1,122
-------------------------- ------------- ------------------------ ------------------------ ----------------------
Common Stock (par value
$0.001) (4) 350,000 $61.50 $21,525,000 $5,683
-------------------------- ------------- ------------------------ ------------------------ ----------------------
TOTAL 472,236 $25,772,701 $6,805
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</TABLE>
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(1) The registration fee is calculated pursuant to Rule 457(h) under the
Securities Act of 1933, as amended.
(2) Shares subject to options under the Atmosphere Networks, Inc. 1997 Stock
Plan.
(3) Weighted average of the offering price per share.
(4) Shares subject to options under an Individual Stock Option Grant outside of
a Plan.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Ditech Communication Corporation (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's annual report on Form 10-K for the fiscal year
ended April 30, 2000, filed on July 31, 2000 pursuant to Section 15(d) of the
Securities Act of 1934, as amended (the "Exchange Act").
(b) The description of the Company's Common Stock which is contained in
a registration statement filed under the Exchange Act on Form 8-A on May 28,
1999.
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.
DESCRIPTION OF SECURITIES
Not Applicable.
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.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's certificate of incorporation limits the liability of
directors to the fullest extent permitted by the General Corporation Law of the
State of Delaware as it currently exists. Consequently, subject to the General
Corporation Law of the State of Delaware, no director will be personally liable
to the Company or its shareholders for monetary damages resulting from his or
her conduct as a director, except liability for (1) acts or omissions involving
intentional misconduct or knowing violations of law; (2) unlawful distributions;
or (3) transactions from which the director personally receives a benefit in
money, property or services to which the director is not legally entitled.
The Company's certificate of incorporation also provides that the
Company may indemnify any individual made a party to a proceeding because that
individual is or was a director or officer, and this right to indemnification
will continue as to an individual who has ceased to be a director or officer and
will inure to the benefit of his or her heirs, executors or administrators. Any
repeal of or modification to our certificate of incorporation may not adversely
affect any right of a director or officer who is or was a director or officer at
the time of any repeal or modification. To the extent the provisions of our
certificate of incorporation provide for indemnification of directors or
officers for liabilities arising under the Securities Act 1933, those provisions
are, in the opinion of the Securities and Exchange Commission (the
"Commission"), against public policy as expressed in the Securities Act and they
are therefore unenforceable.
The Company's bylaws provide that it will indemnify our directors and
officers and may indemnify our other officers and employees and other agents to
the fullest extent permitted by law.
The Company has entered into agreements to indemnify directors, certain
officers and other agents, in addition to indemnification provided for in the
Company's certificate of incorporation or bylaws. These agreements, among other
things, indemnify the Company's directors and certain officers for certain
expenses, including
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attorneys' fees, judgments, fines and settlement amounts incurred by any of
these persons in any action or proceeding, including any action by the Company
arising out of the person's services as the Company's director or officer or any
other company or enterprise to which the person provides services at the
Company's request. The Company believes that these provisions and agreements are
necessary to attract and retain qualified persons as directors and officers. The
Company also currently maintains liability insurance for officers and directors.
EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
<PAGE>
EXHIBITS
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward LLP.
10.27* Stock Option Agreement for Ian Wright-outside of the 1998
Stock Option Plan
23.1 Consent of PricewaterhouseCoopers LLP.
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 Atmosphere Networks, Inc. 1997 Stock Plan.
99.2 Form of Notice of Assumption of the Atmosphere Networks, Inc.
1997 Stock Plan by Ditech Communications Corporation.
-----------------------------------------
* Incorporated by reference to the correspondingly numbered exhibit to the
Company's Annual Report on Form 10-K, for the fiscal year ended April 30, 2000,
filed with the Securities and Exchange Commission on July 31, 2000.
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 of 1933;
(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 the 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) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(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) of this section
do not apply if the registration statement is on form S-3, Forms S-8 or Form
F-3, and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant 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.
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(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 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, 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 Mountain View, State of California on August 7,
2000.
DITECH COMMUNICATIONS CORPORATION
By: /s/ William J. Tamblyn
--------------------------
William J. Tamblyn
Vice President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William J. Tamblyn, 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, 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/ Timothy K. Montgomery President, Chief Executive Officer, August 7, 2000
-------------------------------------------- and Director (Principal Executive
Timothy K. Montgomery Officer)
/s/ William J. Tamblyn Vice President of Finance, Chief August 7, 2000
-------------------------------------------- Financial Officer, and Secretary
William J. Tamblyn (Principal Financial and Accounting
Officer)
/s/ Pong C. Lim
-------------------------------------------- Chairman of the Board August 7, 2000
Pong C. Lim
/s/ Gregory M. Avis
-------------------------------------------- Director August 7, 2000
Gregory M. Avis
/s/ Peter Y. Chung
-------------------------------------------- Director August 7, 2000
Peter Y. Chung
<PAGE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ William A. Hasler
-------------------------------------------- Director August 7, 2000
William A. Hasler
/s/ Kenneth E. Jones
-------------------------------------------- Director August 7, 2000
Kenneth E. Jones
-------------------------------------------- Director August , 2000
Andrei M. Manoliu
/s/ George J. Turner
-------------------------------------------- Director August 7, 2000
George J. Turner, Ph.D.
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
5.1 Opinion of Cooley Godward LLP.
10.27* Stock Option Agreement for Ian Wright-outside of the 1998
Stock Option Plan
23.1 Consent of PricewaterhouseCoopers LLP.
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 Atmosphere Networks, Inc. 1997 Stock Plan.
99.2 Form of Notice of Assumption of the Atmosphere Networks, Inc.
1997 Stock Plan by Ditech Communications Corporation.
</TABLE>
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* Incorporated by reference to the correspondingly numbered exhibit to the
Company's Annual Report on Form 10-K, for the fiscal year ended April 30, 2000,
filed with the Securities and Exchange Commission on July 31, 2000.
