As filed with the Securities and Exchange Commission on July 6, 1999
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
DIGITAL LINK CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
California 77-0067742
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
217 Humboldt Court
Sunnyvale, California 94089
(Address of Principal Executive Offices)
1993 Employee Stock Purchase Plan
(Full Title of the Plan)
Naresh C. Kapahi
Digital Link Corporation
217 Humboldt Court
Sunnyvale, California 94089
(Name and Address of Agent For Service)
(408) 745-6200
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Eileen Duffy Robinett, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
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Proposed
Amount Proposed Maximum Amount of
to be Maximum Offering Aggregate Registration
Title of Securities to be Registered Registered Price Per Share Offering Price Fee
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Common Stock, no par value 300,000(1) $7.375(2) $2,212,500(2) $670.45
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(1) Additional shares authorized to be issued as of June 7, 1999 under the
1993 Employee Stock Purchase Plan, as amended.
(2) Estimated as of June 29, 1999 pursuant to Rule 457(c) and (h) solely
for the purpose of calculating the registration fee.
DIGITAL LINK CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's annual report on Form 10-K for the
year ended December 31, 1998 filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")
on March 29, 1999 (Commission File No. 0-23110);
(b) The Registrant's quarterly report on Form 10-Q for the
quarter ended March 31, 1999 filed under the Exchange
Act on May 14, 1999 (Commission File No. 0-23110);
(c) The description of the Registrant's Common Stock
contained in the Registrant's Registration Statement on
Form 8-A (Commission File No. 0-23110) filed on
December 20, 1993 with the Commission under Section
12(g) of the Exchange Act, including any amendment or
report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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The Registrant's Articles of Incorporation include a provision that
eliminates the personal liability of its directors to the Registrant and its
shareholders for monetary damages for breach of the directors' fiduciary duties
in certain circumstances. This limitation has no effect on a director's
liability (i) for acts or omissions that involve intentional misconduct or a
knowing and culpable violation of law, (ii) for acts or omissions that a
director believes to be contrary to the best interests of the Registrant or its
shareholders or that involve the absence of good faith on the part of the
director, (iii) for any transaction from which a director derived an improper
personal benefit, (iv) for acts or omissions that show a reckless disregard for
the director's duty to the Registrant or its shareholders in circumstances in
which the director was aware, or should have been aware, in the ordinary course
of performing a director's duties, of a risk of a serious injury to the
Registrant or its shareholders, (v) for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the Registrant or its shareholders, (vi) under Section 310 of the
California Corporations Code (the "California Code") (concerning contracts or
transactions between the Registrant and a director) or (vii) under Section 316
of the California Code (concerning directors' liability for improper dividends,
loans and guarantees). The provision does not extend to acts or omissions of a
director in his capacity as an officer. Further, the provision has no effect on
claims arising under federal or state securities laws and will not affect the
availability of injunctions and other equitable remedies available to the
Registrant's shareholders for any violation of a director's fiduciary duty to
the Registrant or its shareholders.
The Registrant's Articles of Incorporation also include an authorization
for the Registrant to indemnify its agents (as defined in Section 317 of the
California Code), through bylaws provisions, by agreement or otherwise, to the
fullest extent permitted by law. Pursuant to this latter provision, the
Registrant's Bylaws provide for indemnification of the Registrant's directors,
officers and employees. In addition, the Registrant, at its discretion, may
provide indemnification to persons whom the Registrant is not obligated to
indemnify. The Bylaws also allow the Registrant to enter into indemnity
agreements with individual directors, officers, employees and other agents.
These indemnity agreements have been entered into with all directors and provide
the maximum indemnification permitted by law. These agreements, together with
the Registrant's Bylaws and Articles of Incorporation, may require the
Registrant, among other things, to indemnify such directors against certain
liabilities that may arise by reason of their status or service as directors
(other than liabilities resulting from willful misconduct of a culpable nature),
to advance expenses to them as they are incurred, provided that they undertake
to repay the amount advanced if it is ultimately determined by a court that they
are not entitled to indemnification, and to obtain directors' and officers'
insurance if available on reasonable terms.
Section 317 of the California Code and the Registrant's Bylaws make
provision for the indemnification of officers, directors and other corporate
agents in terms sufficiently broad to indemnify such persons, under certain
circumstances, for liabilities (including reimbursement of expenses incurred)
arising under the Securities Act.
The Registrant carries directors' and officers' insurance.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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4.01 Registrant's Amended and Restated Articles of
Incorporation filed on February 7, 1994 (incorporated
herein by reference to Exhibit 3.01 of the Registrant's
Form 10-K for the year ended December 31, 1994 (the
"1994 Form 10-K"), Commission File No. 0-23110).
4.02 Registrant's Certificate of Correction of Amended and
Restated Articles of Incorporation filed on April 7,
1994 (incorporated herein by reference to Exhibit 3.02
of the 1994 Form 10-K, Commission File No. 0-23110).
4.03 Registrant's Bylaws, as amended (incorporated herein
by reference to Exhibit 4.03 of Registrant's
Registration Statement on Form S-8 (No. 33-95176)
filed with the Commission on July 31, 1995.
4.04 Registrant's 1993 Employee Stock Purchase Plan, as
amended.
4.05 Form of Agreement for Registrant's 1993 Employee Stock
Purchase Plan, as amended (incorporated herein by
reference to Exhibit 10.07 of the 1994 Form 10-K,
Commission File No. 0-23110).
4.06 Form of specimen certificate for Registrant's Common
Stock (incorporated herein by reference to Exhibit 4.01
of the Registrant's Registration Statement on Form S-1
(No. 33-72642) originally filed on December 8, 1993
(the "Form S-1")).
4.07 Registration Rights Agreement among Registrant, Vinita
Gupta, Summit Ventures, L.P., SV Eurofund C.V. and
Summit Investors, L.P. dated December 23, 1987 and
certain exhibits thereto (incorporated herein by
reference to Exhibit 4.02 of the Form S-1).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit
5.01).
23.02 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
24.01 Power of Attorney (see page 7).
Item 9. Undertakings.
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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
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;
(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 (1)(i) and (1)(ii) above do 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
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference 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.
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 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.
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 provisions discussed in Item 6, above, or otherwise,
the Registrant has been advised that in the opinion of the 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.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K of Digital Link Corporation for the year ended
December 31, 1998 have been so incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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 Sunnyvale, State of California, on the 6th day of
July, 1999.
DIGITAL LINK CORPORATION
By: /s/ N. C. Kapahi
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Naresh C. Kapahi
Vice President, Finance and
Operations, Chief Financial Officer
and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Vinita Gupta and Naresh C. Kapahi, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he or it might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or his or their substitute or substitutes, may lawfully 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 date indicated.
Signature Title Date
Principal Executive Officer:
/s/ Vinita Gupta Chariman of the Board, July 6, 1999
- ----------------------- Chief Executive Officer
Vinita Gupta and President
Principal Financial Officer
and Principal Accounting
Officer:
/s/ N. C. Kapahi Vice President, Finance and July 6, 1999
- ----------------------- Operations, Chief Financial
Naresh C. Kapahi Officer and Secretary
Additional Directors:
/s/ R. C. Alberding Director July 6, 1999
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Richard C. Alberding
/s/ Louis Golm Director July 6, 1999
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Louis Golm
/s/ Narendra Gupta Director July 6, 1999
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Narendra K. Gupta
/s/ Stephen L. Von Rump Director July 6, 1999
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Stephen L. Von Rump
Exhibit Index
Exhibit No. Description
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4.01 Registrant's Amended and Restated Articles of Incorporation
filed on February 7, 1994 (incorporated herein by reference to
Exhibit 3.01 of the Registrant's Form 10-K for the year ended
December 31, 1994 (the "1994 Form 10-K"), Commission File No.
0-23110).
4.02 Registrant's Certificate of Correction of Amended and Restated
Articles of Incorporation filed on April 7, 1994 (incorporated
herein by reference to Exhibit 3.02 of the 1994 Form 10-K,
Commission File No. 0-23110).
4.03 Registrant's Bylaws, as amended (incorporated herein by
reference to Exhibit 4.03 of Registrant's Registration Statement
on Form S-8 (No. 33-95176) filed with the Commission on July 31,
1995.
4.04 Registrant's 1993 Employee Stock Purchase Plan, as amended.
4.05 Form of Agreement for Registrant's 1993 Employee Stock Purchase
Plan, as amended (incorporated herein by reference to Exhibit
10.07 of the 1994 Form 10-K, Commission File No. 0-23110).
4.06 Form of specimen certificate for Registrant's Common Stock
(incorporated herein by reference to Exhibit 4.01 of this
Registrant's Registration Statement on Form S-1 (No. 33-72642)
originally filed on December 8, 1993 (the "Form S-1")).
4.07 Registration Rights Agreement among Registrant, Vinita Gupta,
Summit Ventures, L.P., SV Eurofund C.V. and Summit Investors,
L.P. dated December 23, 1987 and certain exhibits thereto
(incorporated herein by reference to Exhibit 4.02 of the Form
S-1).
5.01 Opinion of Fenwick & West LLP
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24.01 Power of Attorney (see page 7).