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As filed with the Securities and Exchange Commission on August 8, 2000.
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
DIGITALTHINK, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 7372 94-3244366
(State or other jurisdiction of (Primary Standard Industrial (IRS Employer Identification Number)
incorporation or organization) Classification Code Number)
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DIGITALTHINK, INC.
1098 Harrison Street
San Francisco, CA 94103
(415) 625-4000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
1996 STOCK PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
Peter Goettner
DIGITALTHINK, INC.
1098 Harrison Street
San Francisco, CA 94103
(415) 625-4000
(Name, address, including zip code, and telephone number, including area code
and telephone number of agent for service)
Copy to:
Mark Casillas, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE OFFERING AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE FEE
-------------------------------------------------- ------------------ ------------------ ------------------- ----------------
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1996 Stock Plan
Common Stock, $0.001 par value
(currently outstanding options) (1) 5,732,447 $8.24 $47,235,363.28 $12,470.14
-------------------------------------------------- ------------------ ------------------ ------------------- ----------------
1996 Stock Plan
Common Stock, $0.001 par value
(options available for future grant) (2) 2,331,961 $48.750 $113,683,098.80 $30,012.34
-------------------------------------------------- ------------------ ------------------ ------------------- ----------------
TOTAL 1996 STOCK PLAN SHARES REGISTERED 8,064,408
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1999 Employee Stock Purchase Plan
Common Stock, $0.001 par value (3) 200,000 $41,438 $8,287,600.00 $2,187.93
-------------------------------------------------- ------------------ ------------------ ------------------- ----------------
TOTAL REGISTRATION FEES $44,670.41
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(1) The computation is based upon the weighted average exercise price per share
of $8.24 as to 5,732,447 outstanding but unexercised options to purchase
Common Stock under the 1996 Stock Plan (the "Currently Outstanding
Options").
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
remaining 2,331,961 shares of Common Stock authorized for issuance pursuant
to the 1996 Stock Plan, solely for the purpose of calculating the
registration fee. No options have been granted with respect to such shares.
The computation is based upon the average of the high and low price of the
Common Stock as reported on the Nasdaq National Market on August 4, 2000
because the price at which the options to be granted in the future may be
exercised is not currently determinable.
(3) The shares covered by this Registration Statement represent shares of
Common Stock which have become available for issuance under the
Registrant's 1999 Employee Stock Purchase Plan as a result of an amendment
approved by the shareholders via written consent on February 2, 2000. The
Proposed Maximum Offering Price Per Share has been estimated in accordance
with Rule 457(h) under the Securities Act of 1933 solely for the purpose of
calculating the registration fee. The computation is based upon 85% (see
explanation in the following sentence) of the average of the high and low
price of Registrant's Common Stock as reported on the NASDAQ National
Market System on August 4, 2000. Pursuant to the 1999 Employee Stock
Purchase Plan, the Purchase Price of a share of Common Stock shall mean an
amount equal to 85% of the Fair Market Value of a share of Common Stock on
the Enrollment Date or the Exercise Date, whichever is lower.
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DIGITALTHINK, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in this Item 1 will be
sent or given to employees as specified by Rule 428 (b)(1). In accordance with
the rules and regulations of the Securities and Exchange Commission (the
"Commission") and the instructions to Form S-8, such documents are not being
filed with the Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in this Item 2 will be
sent or given to employees as specified in Rule 428 (b). In accordance with the
rules and regulations of the Commission and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS 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 description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act on December 28, 1999.
(b) The Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 2000.
(c) All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities and Exchange Act of 1934, as amended
(the "Exchange Act") on or 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 of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the common stock offered hereby will be passed upon for us
by Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto,
California. As of the date of this registration statement, WS Investments, an
investment partnership composed of current and former members of and persons
associated with Wilson Sonsini Goodrich & Rosati, Professional Corporation,
beneficially owned an aggregate of 63,000 shares of common stock of
DigitalThink. Mario M. Rosati, a member of Wilson Sonsini Goodrich & Rosati,
owns 7,000 shares of DigitalThink's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has adopted provisions in its Certificate of Incorporation
that eliminate the personal liability of its directors and officers for monetary
damages arising from a breach of their fiduciary duties in certain circumstances
to the fullest extent permitted by law and authorizes the Registrant to
indemnify its directors and officers to the fullest extent permitted by law.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by the General
Corporation Law of Delaware, including circumstances in which indemnification is
otherwise discretionary under Delaware law. Section 145 of the General
Corporation Law of Delaware provides for the indemnification of officers,
directors and other corporate agents in terms sufficiently broad to indemnify
such persons, under certain circumstances, for certain liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933, as
amended (the "Securities Act"). The Registrant has entered into indemnification
agreements to such effect with its officers and directors containing provisions
which are in some respects broader than the specific indemnification provisions
contained in the General Corporation Law of Delaware. The indemnification
agreements may require the Company, among other things, to indemnify such
officers and directors against certain liabilities that may arise by reason of
their status or service as directors or officers (other than liabilities arising
from willful misconduct of a culpable nature) and to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are filed as part
hereof, or incorporated by reference into, this Registration Statement. (See
Index below).
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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 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 undersigned 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
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.
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant, DIGITALTHINK, INC., 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 August 8, 2000.
DIGITALTHINK, INC.
By: /s/ Peter J. Goettner
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Peter J. Goettner,
Chairman of the Board and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Peter J. Goettner, jointly and severally,
his attorneys-in-fact, each with the 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, 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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Signature Title Date
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/s/ Peter J. Goettner Chairman of the Board, Chief Executive Officer and August 8, 2000
---------------------------------------- Director* (Principal Executive Officer)
(Peter J. Goettner)
/s/ Michael W. Pope Chief Financial Officer (Principal Financial and August 8, 2000
---------------------------------------- Accounting Officer)
(Michael W. Pope)
/s/ Adam D. Levy Secretary August 8, 2000
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(Adam D. Levy)
/s/ E. Follett Carter Director* August 8, 2000
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(E. Follett Carter)
/s/ Steven J. Eskenazi Director* August 8, 2000
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(Steven J. Eskenazi)
/s/ Samuel D. Kingsland Director* August 8, 2000
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(Samuel D. Kingsland)
/s/ William H. Lane III Director* August 8, 2000
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(William H. Lane III)
/s/ Jon C. Madonna Director* August 8, 2000
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(Jon C. Madonna)
/s/ Roderick C. McGeary Director* August 8, 2000
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(Roderick C. McGeary)
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*The employee benefit plans being registered pursuant to this Registration
Statement are subject to administration by the Board of Directors of the
Registrant.
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DIGITALTHINK, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
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EXHIBIT NO. DESCRIPTION
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5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (included in Registration Statement on page 6).
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