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As filed with the Securities and Exchange Commission on August 14, 2000
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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REGISTRATION STATEMENT
ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
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DIGITAL IMPACT, INC.
(Exact name of Registrant as specified in its charter)
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<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)
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MINESHARE, INC. 1997 STOCK PLAN
(Full title of the plans)
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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:
Selim Day
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) REGISTRATION FEE
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Common Stock, $0.001 par value, to be issued upon
exercise of options under the Mineshare, Inc.
1997 Stock Plan 129,623 $3.4492 $447,090 $118.03
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(1) This Registration Statement shall also cover any additional shares of
Digital Impact, Inc.'s Common Stock which become issuable under the
Mineshare, Inc. 1997 Stock Plan by reason of a stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in the increase in the number of the
outstanding shares of Digital Impact, Inc.'s Common Stock.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on the aggregate offering price of
the outstanding options.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
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* 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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
Digital Impact, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents and information
previously filed with the Securities and Exchange Commission:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 2000;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2000;
(c) The Registrant's Registration Statement on Form 8-A filed pursuant to
Section 12 of the Securities and Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), on October 22, 1999, and any further amendment or report filed hereafter
for the purpose of updating any such description; and
(d) All documents subsequently filed by the Registrant 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.
Not applicable.
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 Registrant's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law.
Article VI of the Registrant's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the Registrant 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 Registrant, and, with respect to any
criminal action or proceeding, the indemnified party had no reason to believe
his or her conduct was unlawful.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit
Number
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4.1 Mineshare, Inc. 1997 Stock Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Independent Accountants, PricewaterhouseCoopers LLP
23.2 Consent of Counsel (contained in Exhibit 5.1)
25.1 Power of Attorney (See page 6)
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Item 9. Undertakings.
(a) The 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 Securities Act of 1933, as
amended (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, and (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)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in the periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference into this 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 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 Securities Exchange Act
of 1934, as amended (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.
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(c) 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 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 August 14, 2000.
DIGITAL IMPACT, INC.
By: /s/ WILLIAM PARK
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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 August 14, 2000.
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Signature Title
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/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
David Oppenheimer (Principal Financial and Accounting Officer)
/s/ GERARDO CAPIEL Chief Technology Officer and Director
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Gerardo Capiel
/s/ RUTHANN QUINDLEN Director
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Ruthann Quindlen
/s/ WARREN PACKARD Director
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Warren Packard
/s/ MICHAEL BROWN Director
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Michael Brown
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INDEX TO EXHIBITS
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Exhibit
Number Description
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4.1 Mineshare, Inc. 1997 Stock Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Independent Accountants, PricewaterhouseCoopers LLP
23.2 Consent of Counsel (contained in Exhibit 5.1)
25.1 Power of Attorney (See page 6)
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