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As filed with the Securities and Exchange Commission on June 2, 2000
Registration No. 333-____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
------------
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, Suite 1200
San Francisco, CA 94105
(Address of principal executive offices) (Zip Code)
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DIGITAL ISLAND, INC. 1999 STOCK INCENTIVE PLAN
(As Amended and Restated Effective January 20, 2000)
(Full title of the Plan)
------------
T.L. Thompson
Chief Financial Officer
Digital Island, Inc.
45 Fremont Street, Suite 1200
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
<TABLE>
<CAPTION>
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Proposed Proposed
Amount to be Maximum Offering Maximum Aggregate Amount of
Title of Securities to be Registered Registered(1) Price per Share(2) Offering Price(2) Registration Fee
---------------------------------------- ----------------- ------------------- -------------------- ------------------
<S> <C> <C> <C> <C>
Digital Island, Inc. 1999 Stock Incentive
-----------------------------------------
Plan (As Amended and Restated Effective
---------------------------------------
January 20, 2000)
----------------
Common Stock, $0.001 par value 5,000,000 shares $17.96875 $89,843,750.00 $23,718.75
=================================================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Digital Island, Inc. 1999
Stock Incentive Plan (As Amended and Restated Effective January 20, 2000)
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 average of the high
and low selling prices of Registrant's Common Stock on May 26, 2000 as
reported by the Nasdaq National Market.
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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 Quarterly Report on Form 10-Q and Form 10-Q/A
for the period ended December 31, 1999, filed with the Commission
on February 11, 2000 and February 22, 2000, respectively;
(c) The Registrant's Quarterly Report on Form 10-Q for the period
ended March 31, 2000, filed with the Commission on May 15, 2000;
(d) The Registrant's Current Reports on Form 8-K filed with the
Commission on October 27, 1999, December 9, 1999, and January 5,
2000, respectively; and
(e) 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 "Securities Act"). Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to
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the foregoing provisions, 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.
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 acts
or omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
director, and for 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
liabilities insurance.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item 8. Exhibits
--------
Exhibit Number Exhibit
-------------- -------
4 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(e) to this
Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Digital Island, Inc. 1999 Stock Incentive Plan (As Amended and
Restated Effective January 20, 2000).
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 Registrant's 1999
Stock Incentive Plan (As Amended and Restated Effective January 20, 2000).
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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 25th day of May, 2000.
Digital Island, Inc.
By: /s/ Ruann F. Ernst
-----------------------------------
Ruann F. Ernst
Chief Executive Officer
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 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 and May 25, 2000
------------------------
Ruann F. Ernst Chairman of the Board
(Principal Executive Officer)
/s/ T.L. Thompson Chief Financial Officer May 25, 2000
------------------------
T.L. Thompson (Principal Financial and
Accounting Officer)
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/s/ Leo Spiegel President and Director May 31, 2000
------------------------
Leo Spiegel
/s/ Charlie Bass Director May 31, 2000
------------------------
Charlie Bass
/s/ Christos Cotsakos Director May 31, 2000
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Christos Cotsakos
/s/ Marcelo A. Gumucio Director May 31, 2000
------------------------
Marcelo A. Gumucio
/s/ G. Bradford Jones Director May 31, 2000
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G. Bradford Jones
/s/ Shahan Soghikian Director May 31, 2000
------------------------
Shahan Soghikian
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EXHIBIT INDEX
Exhibit Number Exhibit
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4 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(e) to
this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Digital Island, Inc. 1999 Stock Incentive Plan (As Amended
and Restated Effective January 20, 2000).
