<PAGE>
As filed with the Securities and Exchange Commission on December 18, 2000
Registration No. 333-_____
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UNITED STATES
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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CACHEFLOW INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 7373 91-1715963
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
650 Almanor Avenue
Sunnyvale, California 94086
(Address of principal executive offices) (Zip Code)
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CACHEFLOW INC.
Entera, Inc. 1999 Equity Incentive Plan
Entera, Inc. 2000 Equity Incentive Plan
Shares Acquired under Written Compensatory Agreements
(Full title of the Plans)
-------------------
Michael A. Johnson
Chief Financial Officer
CACHEFLOW INC.
650 Almanor Avenue
Sunnyvale, California 94086
(Name and address of agent for service)
(408) 220-2200
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Offering Registration
Registered Registered (1) per Share (2) Price (2) Fee
---------- ---------- --------- ----- ---
<S> <C> <C> <C> <C>
Entera, Inc. 1999 Equity Incentive Plan
---------------------------------------
Options to purchase Common Stock 16,145 N/A N/A N/A
Common Stock (par value $.0001) 16,145 $62.75 $ 1,013,098.75 $267.46
Entera, Inc. 2000 Equity Incentive Plan
---------------------------------------
Options to purchase Common Stock 387,880 N/A N/A N/A
Common Stock (par value $.0001) 387,880 $62.75 $24,339,470.00 $6,425.62
Shares Acquired Written Compensatory Agreements
-----------------------------------------------
Common Stock (par value $.0001) 10,000 $62.75 $ 627,500.00 $ 165.66
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Entera, Inc. 1999 Equity
Incentive Plan, the Entera, Inc. 2000 Equity Incentive Plan and Written
Compensatory Agreements by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the outstanding shares of Common Stock of CacheFlow Inc.
(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 price per share of Common Stock of CacheFlow Inc. on
December 13, 2000.
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PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
---------------------------------------
CacheFlow Inc. (the "Registrant") hereby incorporates by reference into
this Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K filed with the SEC
for the fiscal year ended April 30, 2000;
(b) The Registrant's Quarterly Report on Form 10-Q filed with the SEC
for the fiscal quarter ended July 31, 2000;
(c) The Registrant's Quarterly Report on Form 10-Q filed with the SEC
for the fiscal quarter ended October 31, 2000;
(d) The description of the Registrant's outstanding Common Stock
contained in the Registrant's Registration Statement No. 000-
28139 on Form 8-A12G filed with the SEC on November 16, 1999,
pursuant to Section 12 of the 1934 Act, including any amendment
or report filed for the purpose of updating such description.
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 deregisters 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.
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 1933 Act. The
Registrant's Bylaws provide for mandatory indemnification of its directors and
permissible indemnification of officers, employees and other agents to the
maximum extent permitted by the Delaware General Corporation Law. The
Registrant's 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 Registrant and 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 Registrant 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 Indemnification
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Agreements with its directors. The Indemnification Agreements provide the
Registrant's directors with further indemnification to the maximum extent
permitted by the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed
-----------------------------------
The sale and issuance of securities to the registered stockholders by
CacheFlow Inc. to whom the shares offered for resale pursuant to this
Registration Statement were sold were in each case deemed to be exempt from
registration under the Securities Act of 1933 by virtue of Section 4(2) thereof.
Item 8. Exhibits
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Exhibit Number Exhibit
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4 Instrument Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-28139
on Form 8-A12G, which is incorporated herein by reference
pursuant to Item 3(d) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Form of Stock Option Agreement for the Entera, Inc. 1999
Equity Incentive Plan.
99.2 Form of Stock Option Agreement for the Entera, Inc. 2000
Equity Incentive Plan.
99.3 Form of Written Compensatory Agreement.
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 paragraphs is contained in periodic reports filed with or
furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference in 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 Entera, Inc. 1999 Equity Incentive Plan, the Entera, Inc.
2000 Equity Incentive Plan, and the Written Compensatory Agreements.
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 in 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 SEC, 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 Sunnyvale, State of California on this 18th day
of December, 2000.
CACHEFLOW INC.
By: /s/ Brian M. NeSmith
-------------------------------------------------
Brian M. NeSmith
Chief Executive Officer, President, and Director
POWER OF ATTORNEY
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KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Cacheflow Inc., a
Delaware corporation, do hereby constitute and appoint Brian M. NeSmith and
Michael A. Johnson, and either 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 either 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
all that said attorneys and agents, or either 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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
Chief Executive Officer, President, and Director December 18, 2000
/s/ Brian M. NeSmith
_________________________
Brian M. NeSmith (Principal Executive Officer)
Chief Financial Officer, Vice President, and December 18, 2000
/s/ Michael J. Johnson
_________________________
Michael J. Johnson Secretary (Principal Financial and Accounting Officer)
/s/ Marc Andreessen Director December 18, 2000
_________________________
Marc Andreessen
Director December __, 2000
_________________________
David W. Hanna
Director December 18, 2000
/s/ Stuart G. Phillips
_________________________
Stuart G. Phillips
/s/ Andrew Rachleff Director December 18, 2000
_________________________
Andrew Rachleff
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EXHIBIT INDEX
Exhibit Number Exhibit
-------------- -------
4 Instrument Defining Rights of Stockholders. Reference
is made to CacheFlow Inc.'s Registration Statement No.
0-28139 on Form 8-A, which is incorporated herein by
reference under Item 3(b) of this Registration
Statement.
5 Opinion and consent of Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin
& Hachigian LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of
this Registration Statement.
99.1 Form of Stock Option Agreement for Entera, Inc. 1999
Equity Incentive Plan.
99.2 Form of Stock Option Agreement for Entera, Inc. 2000
Equity Incentive Plan.
99.3 Form of Written Compensation Agreement.
