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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
DigitalThink, Inc.
(Exact name of Registrant as specified in its charter)
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Delaware 94-3244366
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(State of incorporation or organization) (IRS Employer I.D. No.)
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1098 Harrison Street, San Francisco, California 94103
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(Address of principal executive offices)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box: [ ]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form relates (if
applicable): Not applicable.
Securities to be registered pursuant to Section 12(b) of the Act:
None
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(Title of Class)
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Stock Purchase Rights
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ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
On September 15, 2000, pursuant to a Preferred Stock Rights
Agreement (the "Rights Agreement") between DigitalThink, Inc. (the
"Company") and Wells Fargo & Company, as Rights Agent (the "Rights
Agent"), the Company's Board of Directors declared a dividend of one
right (a "Right") to purchase one one-thousandth share of the Company's
Series A Participating Preferred Stock ("Series A Preferred") for each
outstanding share of Common Stock, par value $0.001 per share ("Common
Shares"), of the Company. The dividend is payable on October 23, 2000
(the "Record Date"), to shareholders of record as of the close of
business on that date. Each Right entitles the registered holder to
purchase from the Company one one-thousandth of a share of Series A
Preferred at an exercise price of $250.00 (the "Purchase Price"),
subject to adjustment.
The following summary of the principal terms of the Rights
Agreement is a general description only and is subject to the detailed
terms and conditions of the Rights Agreement. A copy of the Rights
Agreement is attached as Exhibit 4.2 to this Registration Statement and
is incorporated herein by reference.
RIGHTS EVIDENCED BY COMMON SHARE CERTIFICATES
The Rights will not be exercisable until the Distribution Date
(defined below). Certificates for the Rights ("Rights Certificates")
will not be sent to shareholders and the Rights will attach to and trade
only together with the Common Shares. Accordingly, Common Share
certificates outstanding on the Record Date will evidence the Rights
related thereto, and Common Share certificates issued after the Record
Date will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender or transfer of any certificates
for Common Shares, outstanding as of the Record Date, even without
notation or a copy of the Summary of Rights being attached thereto, also
will constitute the transfer of the Rights associated with the Common
Shares represented by such certificate.
DISTRIBUTION DATE
The Rights will be separate from the Common Shares, Rights
Certificates will be issued and the Rights will become exercisable upon
the earlier of (a) the tenth business day (or such later date as may be
determined by the Company's Board of Directors) after a person or group
of affiliated or associated persons ("Acquiring Person") has acquired,
or obtained the right to acquire, beneficial ownership of 15% or more of
the Common Shares then outstanding, or (b) the tenth business day (or
such later date as may be determined by the Company's Board of
Directors) after a person or group announces a tender or exchange offer,
the consummation of which would result in ownership by a person or group
of 15% or more of the Company's then outstanding Common Shares. The
earlier of such dates is referred to as the "Distribution Date."
ISSUANCE OF RIGHTS CERTIFICATES; EXPIRATION OF RIGHTS
As soon as practicable following the Distribution Date, a
summary of the Rights will be mailed to holders of record of the Common
Shares as of the close of business on the Distribution Date and this
summary alone will evidence the Rights from and after the Distribution
Date. All Common Shares issued after the Distribution Date will be
issued with Rights. The Rights will
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expire on the earliest of (i) October 23, 2010, (the "Final Expiration
Date"), or (ii) redemption or exchange of the Rights as described below.
INITIAL EXERCISE OF THE RIGHTS
Following the Distribution Date, and until one of the further
events described below, holders of the Rights will be entitled to
receive, upon exercise and the payment of the Purchase Price, one
one-thousandth share of the Series A Preferred. In the event that the
Company does not have sufficient Series A Preferred available for all
Rights to be exercised, or the Board decides that such action is
necessary and not contrary to the interests of Rights holders, the
Company may instead substitute cash, assets or other securities for the
Series A Preferred for which the Rights would have been exercisable
under this provision or as described below.
RIGHT TO BUY COMPANY COMMON SHARES
Unless the Rights are earlier redeemed, in the event that an
Acquiring Person obtains 15% or more of the Company's then outstanding
Common Shares, then each holder of a Right which has not theretofore
been exercised (other than Rights beneficially owned by the Acquiring
Person, which will thereafter be void) will thereafter have the right to
receive, upon exercise, Common Shares having a value equal to two times
the Purchase Price. Rights are not exercisable following the occurrence
of an event as described above until such time as the Rights are no
longer redeemable by the Company as set forth below.
RIGHT TO BUY ACQUIRING COMPANY STOCK
Similarly, unless the Rights are earlier redeemed, in the event
that, after an Acquiring Person obtains 15% or more of the Company's
then outstanding Common Shares, (i) the Company is acquired in a merger
or other business combination transaction, or (ii) 50% or more of the
Company's consolidated assets or earning power are sold (other than in
transactions in the ordinary course of business), proper provision must
be made so that each holder of a Right which has not theretofore been
exercised (other than Rights beneficially owned by the Acquiring Person,
which will thereafter be void) will thereafter have the right to
receive, upon exercise, shares of common stock of the acquiring company
having a value equal to two times the Purchase Price.
EXCHANGE PROVISION
At any time after an Acquiring Person obtains 15% or more of the
Company's then outstanding Common Shares and prior to the acquisition by
such Acquiring Person of 50% or more of the Company's outstanding Common
Shares, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by the Acquiring Person), in whole or in part,
at an exchange ratio of one Common Share per Right.
REDEMPTION
At any time on or prior to the Close of Business on the earlier
of (i) the fifth day following the attainment of 15% or more of the
Company's then outstanding Common Shares by an Acquiring Person (or such
later date as may be determined by action of the Company's Board of
Directors and publicly announced by the Company), or (ii) the Final
Expiration Date, the Company may redeem the Rights in whole, but not in
part, at a price of $0.001 per Right.
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ADJUSTMENTS TO PREVENT DILUTION
The Purchase Price payable, the number of Rights, and the number
of Series A Preferred or Common Shares or other securities or property
issuable upon exercise of the Rights are subject to adjustment from time
to time in connection with the dilutive issuances by the Company as set
forth in the Rights Agreement. With certain exceptions, no adjustment in
the Purchase Price will be required until cumulative adjustments require
an adjustment of at least 1% in such Purchase Price.
CASH PAID INSTEAD OF ISSUING FRACTIONAL SHARES
No fractional Common Shares will be issued upon exercise of a
Right and, in lieu thereof, an adjustment in cash will be made based on
the market price of the Common Shares on the last trading date prior to
the date of exercise.
NO SHAREHOLDERS' RIGHTS PRIOR TO EXERCISE
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company (other than any rights
resulting from such holder's ownership of Common Shares), including,
without limitation, the right to vote or to receive dividends.
AMENDMENT OF RIGHTS AGREEMENT
The terms of the Rights and the Rights Agreement may be amended
in any respect without the consent of the Rights holders on or prior to
the Distribution Date; thereafter, the terms of the Rights and the
Rights Agreement may be amended without the consent of the Rights
holders in order to cure any ambiguities or to make changes which do not
adversely affect the interests of Rights holders (other than the
Acquiring Person).
RIGHTS AND PREFERENCES OF THE SERIES A PREFERRED
Each one one-thousandth of a share of Series A Preferred has
rights and preferences substantially equivalent to those of one Common
Share.
NO VOTING RIGHTS
Rights will not have any voting rights.
CERTAIN ANTI-TAKEOVER EFFECTS
The Rights approved by the Board are designed to protect and
maximize the value of the outstanding equity interests in the Company in
the event of an unsolicited attempt by an acquirer to take over the
Company in a manner or on terms not approved by the Board of Directors.
Takeover attempts frequently include coercive tactics to deprive the
Company's Board of Directors and its shareholders of any real
opportunity to determine the destiny of the Company. The Rights have
been declared by the Board in order to deter such tactics, including a
gradual accumulation of shares in the open market of 15% or greater
position to be followed by a merger or a partial or two-tier tender
offer that does not treat all shareholders equally. These tactics
unfairly pressure shareholders, squeeze them out of their investment
without giving them any real choice and deprive them of the full value
of their shares.
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The Rights are not intended to prevent a takeover of the Company
and will not do so. Subject to the restrictions described above, the
Rights may be redeemed by the Company at $0.001 per Right at any time
prior to the Distribution Date. Accordingly, the Rights should not
interfere with any merger or business combination approved by the Board
of Directors.
However, the Rights may have the effect of rendering more
difficult or discouraging an acquisition of the Company deemed
undesirable by the Board of Directors. The Rights may cause substantial
dilution to a person or group that attempts to acquire the Company on
terms or in a manner not approved by the Company's Board of Directors,
except pursuant to an offer conditioned upon the negation, purchase or
redemption of the Rights.
Issuance of the Rights does not in any way weaken the financial
strength of the Company or interfere with its business plans. The
issuance of the Rights themselves has no dilutive effect, will not
affect reported earnings per share, should not be taxable to the Company
or to its shareholders, and will not change the way in which the
Company's shares are presently traded. The Company's Board of Directors
believes that the Rights represent a sound and reasonable means of
addressing the complex issues of corporate policy created by the current
takeover environment.
ITEM 2. EXHIBITS
4.2 Preferred Stock Rights Agreement, dated as of September 15, 2000,
between DigitalThink, Inc. and Wells Fargo & Company, including the Certificate
of Designation, the form of Rights Certificate and the Summary of Rights
attached thereto as Exhibits A, B, and C, respectively.
3.1 Amended and Restated Certificate of Incorporation of DigitalThink,
Inc. (1)
3.2 Bylaws of DigitalThink, Inc. (2)
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(1) Incorporated by reference to Exhibits to the Company's Registration
statement on Form S-1, filed December 9, 1999.
(2) Incorporated by reference to Exhibits to the Company's Registration
statement on Form S-1, filed December 9, 1999.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: September 18, 2000 DigitalThink, Inc.
By: /s/ Peter J. Goettner
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Peter J. Goettner
Chairman, President, and Chief
Executive Officer
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EXHIBIT INDEX
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ITEM
NUMBER DESCRIPTION
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4.2 Preferred Stock Rights Agreement, dated as of September 15, 2000,
between DigitalThink, Inc. and Wells Fargo & Company, including the
Certificate of Designation, the form of Rights Certificate and the
Summary of Rights attached thereto as Exhibits A, B, and C,
respectively.
3.1 Amended and Restated Certificate of Incorporation of DigitalThink,
Inc. (1)
3.2 Bylaws of DigitalThink, Inc. (2)
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(1) Incorporated by reference to Exhibits to the Company's Registration
statement on Form S-1, filed December 9, 1999.
(2) Incorporated by reference to Exhibits to the Company's Registration
statement on Form S-1, filed December 9, 1999.
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