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As filed with the Securities and Exchange Commission on August 10, 2001
Registration No. 333-
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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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INKTOMI CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3238130
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
4100 E. THIRD AVENUE
FOSTER CITY, CA 94404
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ESCENE NETWORKS, INC. 2000 STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
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TIMOTHY STEVENS
SENIOR VICE PRESIDENT OF BUSINESS
AFFAIRS AND GENERAL COUNSEL
4100 E. THIRD AVENUE
FOSTER CITY, CA 94404
(650) 653-2800
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copies to:
DOUGLAS H. COLLOM, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(415) 493-9300
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE REGISTRATION
PER SHARE OFFERING PRICE FEE
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Common Stock, $0.001 per
share par value: To be
issued under eScene
Networks, Inc. 2000 Stock
Incentive Plan.............. 39,755 shares $5.03 (1) $199,968.00 (1) $50.00
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(1) Estimated in accordance with Rule 457(h) solely for the purpose of
computing the amount of the registration fee based on the weighted
average exercise price of $5.03 per share covering authorized but
unissued shares under the eScene Networks, Inc. 2000 Stock Incentive
Plan.
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PART II: INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Inktomi Corporation hereby incorporates by reference in this
registration statement the following documents:
1. Inktomi's Annual Report on Form 10-K and 10K/A for the fiscal
year ended September 30, 2000 filed pursuant to Section 13 of the Securities
Exchange Act of 1934.
2. Inktomi's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 2000, and March 31, 2001 filed pursuant to Section 13 of the
Securities Exchange Act of 1934.
3. Inktomi's current report on Form 8-K/A, filed on January 9,
2001 pursuant to Section 13 of the Exchange Act.
4. Inktomi's current report on Form 8-K, filed on January 12,
2001 pursuant to Section 13 of the Exchange Act.
5. Inktomi's current report on Form 8-K/A, filed on March 13,
2001 pursuant to Section 13 of the Exchange Act.
6. Inktomi's current report on Form 8-K, filed on April 12, 2001
pursuant to Section 13 of the Exchange Act.
7. The description of Inktomi's common stock contained in
Inktomi's registration statement on Form 8-A, filed May 22, 1998 pursuant to
Section 12(g) of the Exchange Act.
All documents we have filed pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, 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, will be deemed to be incorporated by
reference in this registration statement and to be part of this registration
statement 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 X of Inktomi's Amended and Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permitted
under Delaware law.
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Article VI of Inktomi's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the corporation to the
fullest extent permitted under the General Corporation Law of Delaware.
Inktomi has entered into indemnification agreements with its directors
and executive officers, in addition to indemnification provided for in Inktomi's
Bylaws, and intends to enter into indemnification agreements with any new
directors and executive officers in the future.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, or persons controlling Inktomi
pursuant to the foregoing provisions, Inktomi has been informed that in the
opinion of the SEC such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
At present, there is no pending litigation or proceeding involving a
director, officer, employee, or other agent of Inktomi in which indemnification
is being sought, nor is Inktomi aware of any threatened litigation that may
result in a claim for indemnification by any director, officer, employee, or
other agent of Inktomi.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DOCUMENTS
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4.1 eScene Networks, Inc. 2000 Stock Incentive Plan and form of
agreements thereunder
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Accountants
24.1 Power of Attorney (see page II-5)
ITEM 9. UNDERTAKINGS
(a) Rule 415 Offering.
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;
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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) Filing Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, as amended, 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) Request for Acceleration of Effective Date or Filing of Registration
Statement on Form S-8.
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 Foster City, State of California, on this 10th day of
August, 2001.
INKTOMI CORPORATION
By: /s/ Jerry M. Kennelly
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Jerry M. Kennelly, Executive Vice
President, Chief Financial Officer
and Secretary
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David C. Peterschmidt and Jerry M.
Kennelly, and each of them, as his or her attorney-in-fact, with full power of
substitution in each, for him or her 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 AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
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/s/ David C. Peterschmidt President, Chief Executive Officer August 10, 2001
------------------------------------- and Chairman (Principal Executive
David C. Peterschmidt Officer)
/s/ Jerry M. Kennelly Executive Vice President, Chief August 10, 2001
------------------------------------- Financial Officer and Secretary
Jerry M. Kennelly (Principal Financial and Accounting
Officer)
/s/ Eric A. Brewer Director August 10, 2001
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Eric A. Brewer
/s/ Frank Gill Director August 10, 2001
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Frank Gill
/s/ Fredric W. Harman Director August 10, 2001
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Fredric W. Harman
/s/ Alan F. Shugart Director August 10, 2001
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Alan F. Shugart
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INKTOMI CORPORATION
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
EXHIBIT
NUMBER DOCUMENTS
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4.1 eScene Networks, Inc. 2000 Stock Incentive Plan and form of
agreements thereunder
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Accountants
24.1 Power of Attorney (see page II-6)
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