<PAGE>
As filed with the Securities and Exchange Commission on October 6, 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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DIGITAL ISLAND, INC.
(Exact name of registrant as specified in its charter)
Delaware 68-0322824
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
45 Fremont Street, 12th Floor
San Francisco, CA 94105
(Address of principal executive offices) (Zip Code)
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SOFTAWARE, INC. 1999 STOCK OPTION/STOCK ISSUANCE PLAN (As Assumed by Registrant)
(Full title of the Plan)
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T.L. Thompson
Chief Financial Officer
Digital Island, Inc.
45 Fremont Street, 12th Floor
San Francisco, CA 94105
(Name and address of agent for service)
(415) 738-4100
(Telephone number, including area code, of agent for service)
--------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ------------ ------------ -------- ------------
<S> <C> <C> <C> <C>
SoftAware, Inc. 1999 Stock
Option/Stock Issuance Plan
(assumed by Registrant) 78,679 shares $22.28 $1,752,968.12 $462.78
--------------------------
Common Stock, $0.001 par value
</TABLE>
================================================================================
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the SoftAware, Inc, 1999 Stock
Option/Stock Issuance Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the weighted average
exercise price of the outstanding options assumed by Registrant under the
SoftAware, Inc. 1999 Stock Option/Stock Issuance Plan.
<PAGE>
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
---------------------------------------
Digital Island, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1999, filed with the Commission on December 28, 1999,
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (the "1934 Act");
(b) The Registrant's Current Reports on Form 8-K filed with the Commission
on October 27, 1999, December 9, 1999, January 5, 2000, July 6, 2000,
July 19, 2000 and September 22, 2000, respectively;
(c) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended December 31, 1999, March 31, 2000 and June 30, 2000,
filed with the Commission on FebruAry 11, 2000 (and amended on Form
10-Q/A filed with the Commission on February 22, 2000), May 15, 2000
and August 14, 2000, respectively; and
(d) The Registrant's Registration Statement No. 000-26283 on Form 8-A
filed with the Commission on June 7, 1999, pursuant to Section 12(b)
of the 1934 Act, in which there is described the terms, rights and
provisions applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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 authorizes a court
to award or a corporation's board of directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "1933 Act"). Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the 1933 Act and is,
II-1
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therefore, unenforceable. Article VII, Section 6, of the Registrant's Bylaws
provides for mandatory indemnification of its directors and officers and
permissible indemnification of employees and other agents to the maximum extent
permitted by the Delaware General Corporation Law. The Registrant's Amended and
Restated Certificate of Incorporation (the "Certificate of Incorporation")
provides that, pursuant to Delaware law, its directors shall not be liable for
monetary damages for breach of their fiduciary duty as directors to the Company
or its stockholders. This provision in the Certificate of Incorporation does not
eliminate the fiduciary duty of the directors, and in appropriate circumstances
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under Delaware law. In addition, each director will continue to
be subject to liability for breach of the director's duty of loyalty to the
Company for (i) acts or omissions not in good faith or involving intentional
misconduct, (ii) knowing violations of law, (iii) actions leading to improper
personal benefit to the director, and (iv) payment of dividends or approval of
stock repurchases or redemptions that are unlawful under Delaware law. The
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
The Registrant has entered into Indemnity Agreements with its officers and
directors, a form of which was previously filed with the Securities and Exchange
Commission as an exhibit to the Registrant's Registration Statement on Form S-1
(No. 333-77039). The Indemnification Agreements provide the Registrant's
officers and directors with further indemnification to the maximum extent
permitted by the Delaware General Corporation Law. The Registrant also maintains
directors and officers liability insurance.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
-------------- -------
4.0 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement No. 000-26283
on Form 8-A, together with any exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(d) to
this Registration Statement.
5.0 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24.0 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 SoftAware, Inc. 1999 Stock Option/Stock Issuance Plan (as
assumed by Registrant).
99.2 Form of Stock Option Agreement.
99.3 Form of Stock Option Assumption Agreement.
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<PAGE>
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: (i) to include any prospectus required
by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this 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 this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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; and (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 SoftAware, Inc.
1999 Stock Option/Stock Issuance Plan, as assumed by Registrant.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this 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.
C. Insofar as indemnification for liabilities arising under the
1933 Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 or
otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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 1933 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, 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 San Francisco, State of California on
this 5th day of October, 2000.
Digital Island, Inc.
By: /s/ Ruann F. Ernst
----------------------------------------------
Ruann F. Ernst
Chief Executive Officer and Chairman of the
Board
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Digital Island, Inc., a
Delaware corporation, do hereby constitute and appoint Ruann F. Ernst and T.L.
Thompson, and each of them, the lawful attorneys-in-fact and agents with full
power and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them, determine may
be necessary or advisable or required to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both pre-
effective and post-effective, and supplements to this Registration Statement,
and to any and all instruments or documents filed as part of or in conjunction
with this Registration Statement or amendments or supplements thereof, and each
of the undersigned hereby ratifies and confirms that all said attorneys and
agents, or any one of them, shall do or cause to be done by virtue hereof. This
Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Ruann F. Ernst Chief Executive Officer October 5, 2000
----------------------
Ruann F. Ernst and Chairman of the Board
(Principal Executive Officer)
/s/ T.L. Thompson Chief Financial Officer October 5, 2000
---------------------- (Principal Financial and
T.L. Thompson Accounting Officer)
/s/ Leo S. Spiegel President and Director October 5, 2000
----------------------
Leo S. Spiegel
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/s/ Charlie Bass Director October 5, 2000
------------------------
Charlie Bass
/s/ Christos Cotsakos Director October 5, 2000
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Christos Cotsakos
/s/ Marcelo A. Gumucio Director October 5, 2000
------------------------
Marcelo A. Gumucio
/s/ G. Bradford Jones Director October 5, 2000
------------------------
G. Bradford Jones
/s/ Shahan Soghikian Director October 5, 2000
------------------------
Shahan Soghikian
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EXHIBIT INDEX
Exhibit Number Exhibit
-------------- -------
4.0 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement No. 000-26283
on Form 8-A, together with any exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(d) to
this Registration Statement.
5.0 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24.0 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 SoftAware, Inc. 1999 Stock Option/Stock Issuance Plan (as
assumed by Registrant).
99.2 Form of Stock Option Agreement.
99.3 Form of Stock Option Assumption Agreement.
