<PAGE> 1
As filed with the Securities and Exchange Commission on April 13, 2000
Registration No. 333-_______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------------
REGISTRATION STATEMENT
ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
----------------------------------------------
DIGITAL IMPACT, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
177 Bovet Road, Suite 200
Delaware San Mateo, California 94402 94-3286913
(State of Incorporation) (Address of principal executive offices, including zip code) (IRS Employer Identification Number)
</TABLE>
----------------------------------------------
1998 STOCK PLAN
1999 DIRECTOR OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
----------------------------------------------
William Park
Chief Executive Officer and Chairman
of the Board of Directors
DIGITAL IMPACT, INC.
177 Bovet Road, Suite 200
San Mateo, California 94402
(650) 356-3400
(Name, address and telephone number of agent for service)
Copy to:
Jeffrey D. Saper
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
- --------------------------------------------------- ---------------- -------------------- -------------------- -----------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value, to be issued
under the 1998 Stock Plan 4,470,545 $5.332(1) $23,836,946 $6,293
3,385,993 $15.156(2) $51,318,110 $13,548
Common Stock, $0.001 par value, to be issued
under the 1999 Director Option Plan 500,000 $15.156(2) $7,578,000 $2,001
Common Stock, $0.001 par value, to be issued
under the 1999 Employee Stock Purchase Plan 700,000 $15.156(2) $10,609,200 $2,801
TOTAL: 9,056,538 $93,342,256 $24,643
================================================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on the weighted average exercise
price of the outstanding options as of April 11, 2000.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee based on the price of $15.156 per share,
which was the average of the high and low price per share of the Common
Stock as reported on the Nasdaq National Market on April 11, 2000.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information
- ---------------
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended, and the "Note" to Part I of Form S-8.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
(a) The Company's Registration Statement on Form S-1 (File No.
333-87299) as amended, filed pursuant to the Securities Act of 1933, as
amended (the "SECURITIES ACT"), relating to the Company's initial public
offering of its Common Stock.
(b) The Company's Registration Statement on Form 8-A filed pursuant
to Section 12 of the Securities and Exchange Act 1934 (the "EXCHANGE ACT")
on October 22, 1999, and any further amendment or report filed hereafter
for the purpose of updating any such description.
(c) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1999.
(d) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this Registration Statement and 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 in this Registration Statement and to be part
hereof from the date of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Persons associated with Wilson Sonsini Goodrich & Rosati are the holders of
options to acquire an aggregate of 20,000 shares of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article VIII of the Company's Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law.
Article VI of the Company's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the Company if such
person acted in good faith and in a manner reasonably believed to be in and not
opposed to the best interest of the Company, and, with respect to any criminal
action or proceeding, the indemnified party had no reason to believe his or her
conduct was unlawful.
3
<PAGE> 4
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number
-------
<S> <C>
4.1* 1998 Stock Plan, as amended
4.2* 1999 Director Option Plan
4.3* 1999 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
25.1 Power of Attorney (See signature page)
</TABLE>
- ---------------
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-87299), as amended, declared effective by the
Securities and Exchange Commission on November 22, 1999.
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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.
(2) 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of a report by the Company
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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
4
<PAGE> 5
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Mateo, State of California, on April 13, 2000.
DIGITAL IMPACT, INC.
By: /s/ WILLIAM PARK
---------------------------
William Park
Chief Executive Officer and Chairman of the
Board of Directors
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William Park and David Oppenheimer, jointly and
severally, his attorneys-in-fact, each with full power of substitution, for him
in any and all capacities, to sign any amendments to this Registration Statement
on Form S-8, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities on April 13, 2000.
<TABLE>
<CAPTION>
Signature Title
- ------------------------------------- -------------------------------------------------------------------
<S> <C>
/s/ WILLIAM PARK Chief Executive Officer and Chairman of the Board of
- ------------------------------------ Directors (Principal Executive Officer)
William Park
/s/ DAVID OPPENHEIMER Vice President, Finance, Chief Financial Officer, Treasurer
- ------------------------------------ and Secretary (Principal Financial and Accounting Officer)
David Oppenheimer Chief Technology Officer and Director
/s/ GERARDO CAPIEL Director
- ------------------------------------
Gerardo Capiel
/s/ RUTHANN QUINDLEN Director
- ------------------------------------
Ruthann Quindlen
/s/ WARREN PACKARD Director
- ------------------------------------
Warren Packard
/s/ MICHAEL BROWN Director
- ------------------------------------
Michael Brown
</TABLE>
7
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
4.1* 1998 Stock Plan, as amended
4.2* 1999 Director Option Plan
4.3* 1999 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
25.1 Power of Attorney (See signature page)
</TABLE>
- -----------------------
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-87299), as amended, declared effective by the
Securities and Exchange Commission on November 22, 1999.
8
<PAGE> 1
EXHIBIT 5.1
April 13, 2000
Digital Impact, Inc.
177 Bovet Road, Suite 200
San Mateo, California 94402
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about April 13, 2000, in
connection with the registration under the Securities Act of 1933, as amended,
of 9,056,538 shares of Common Stock (the "Shares") to be issued under the
Company's 1998 Stock Plan, 1999 Director Option Plan, and the 1999 Employee
Stock Purchase Plan (referred to collectively as the "Plans").
As your legal counsel, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
sale and issuance of the Shares. It is our opinion that the Shares, when issued
and sold in the manner referred to in the Plans, and pursuant to the agreements
which accompany the Plans, as applicable, will be legally and validly issued,
fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to said Registration
Statement and further consent to the use of our name wherever appearing in said
Registration Statement and any amendments thereto.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated June 16, 1999, except as to items
described in Note 10 as to which the date is November 3, 1999, relating to the
financial statements, which appear in the Registration Statement on Form S-1
(No. 333-87299) of Digital Impact, Inc.
PricewaterhouseCoopers LLP
San Jose, California
April 13, 2000
