<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 17, 1998
REGISTRATION NO. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------------------
VERIO INC.
(Exact name of Registrant as Specified in Its Charter)
----------------------------------------------
DELAWARE 84-1339720
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
8005 SOUTH CHESTER STREET, SUITE 200
ENGLEWOOD, COLORADO 80112
(Address of Principal Executive Offices)
1996 STOCK OPTION PLAN
1997 CALIFORNIA STOCK OPTION PLAN
1998 STOCK INCENTIVE PLAN
1998 NON-EMPLOYEE DIRECTOR STOCK INCENTIVE PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
----------------------------------------------
JUSTIN L. JASCHKE
CHIEF EXECUTIVE OFFICER
VERIO INC.
8005 SOUTH CHESTER STREET, SUITE 200
ENGLEWOOD, COLORADO 80112
(Name and Address of Agent for Service)
(303) 645-1900
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
<TABLE>
<S> <C>
GAVIN B. GROVER, ESQ. CARLA HAMRE DONELSON, ESQ.
MORRISON & FOERSTER LLP GENERAL COUNSEL
425 MARKET STREET VERIO INC.
SAN FRANCISCO, CALIFORNIA 94105 8005 SOUTH CHESTER STREET, SUITE 200
(415) 268-7000 ENGLEWOOD, COLORADO 80112
(303) 645-1900
</TABLE>
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================== ==================== ====================== ======================= ======================
Amount Maximum Proposed Maximum Proposed
Title of Securities to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share(1) Price(1) Registration Fee
- - -------------------------- -------------------- ---------------------- ----------------------- ----------------------
<S> <C> <C> <C> <C> <C>
Common Stock, $.001 par 12,265,667 $18.25 $223,848,423 $66,035
value per share
========================== ==================== ====================== ======================= ======================
</TABLE>
(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee.
Computation based upon the average of the high and low prices of the
Registrant's Common Stock as reported on the Nasdaq National Market on June
16, 1998.
================================================================================
The Index to Exhibits appears on page II-8.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part 1 of Form
S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Verio Inc. (the "Registrant") with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference herein:
(a) The Registrant's Prospectus filed pursuant to Rule 424(b) of the
Securities Act of 1933, as amended (the "Securities Act"), related to the
Registration Statement on Form S-1 (the "Registration Statement") as declared
effective on May 11, 1998 (No. 333-47099), which includes audited financial
statements for the Registrant's latest fiscal year.
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the
end of the fiscal year covered by the audited financial statements described in
(a) above.
(c) The description of the Registrant's Common Stock which is contained
in its Registration Statement on Form 8-A dated May 8, 1998 filed under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 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
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
II-1
<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation, as amended, and Bylaws
provide that the Registrant shall indemnify to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law ("DGCL"), as it now exists
or as amended, all directors and officers pursuant thereto. The Registrant's
Certificate of Incorporation and Bylaws also authorize the Registrant to
indemnify its employees and other agents, at its option, to the fullest extent
permitted by Section 145 of the DGCL, as it now exists or as amended. The
Registrant intends to enter into agreements to indemnify its directors and
officers, in addition to indemnification provided for in the Registrant's
charter documents. These agreements, among other things, provide for the
indemnification of the Registrant's directors and officers for certain expenses
(including attorneys' fees), judgments, fines and settlement amounts incurred by
any such person in any action or proceeding, including any action by or in the
right of the Registrant, arising out of such person's services as a director or
officer of the Registrant, any subsidiary of the Registrant or any other company
or enterprise to which such person provides services at the request of the
Registrant to the fullest extent permitted by applicable law. The Registrant
believes that these provisions and agreements will assist the Registrant in
attracting and retaining qualified persons to serve as directors and officers.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL,
or (iv) for any transaction from which the director derived an improper personal
benefit. The Registrant's Certificate of Incorporation provides for the
elimination of personal liability of a director for breach of fiduciary duty, as
permitted by Section 102(b)(7) of the DGCL.
Section 8 of the Underwriting Agreement entered into by the Registrant
and the underwriters in connection with the Registrant's initial public
offering, the form of which is attached as Exhibit 1.1 to the Registration
Statement and incorporated herein by reference, contains certain provisions
relating to indemnification by the underwriters named therein under certain
circumstances of directors, officers and controlling persons of the Registrant
against certain liabilities, including liabilities under the Securities Act.
II-2
<PAGE> 4
The Registrant has purchased and maintains insurance on behalf of the
officers and directors insuring them against liabilities that they may incur in
such capacities or arising out of such status.
The Investment Agreement with Nippon Telegraph and Telephone Corporation
described in the Registration Statement on Form S-1 provides for
cross-indemnification of stockholders of the Registrant whose shares with
registration rights are included in a registration under the Securities Act, and
of the Registrant, its officers and directors for certain liabilities arising in
connection with such registration.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Form of Second Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.5 to the
Registrant's Quarterly Report on Form 10-Q (Commission File No.
000-24219) which was filed on May 27, 1998).
4.2 Registrant's Bylaws (incorporated by reference to Exhibit 3.2 to
the Registrant's Registration Statement on Form S-1 (Commission
File No. 333-47099) which became effective on May 11, 1998 (the
"Registration Statement on Form S-1")).
4.3 Registrant's 1996 Stock Option Plan, as amended (incorporated by
reference to Exhibit 10.9 to the Registration Statement on Form
S-1).
4.4 Registrant's 1997 California Stock Option Plan, as amended
(incorporated by reference to Exhibit 10.10 to the Registration
Statement on Form S-1).
4.5 Registrant's 1998 Stock Incentive Plan, as amended (incorporated
by reference to Exhibit 10.12 to the Registration Statement on
Form S-1).
4.6 Registrant's 1998 Non-Employee Director Stock Incentive Plan, as
amended (incorporated by reference to Exhibit 10.32 to the
Registration Statement on Form S-1).
4.7 Registrant's 1998 Employee Stock Purchase Plan, as amended
(incorporated by reference to Exhibit 10.11 to the Registration
Statement on Form S-1).
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of KPMG Peat Marwick LLP (Denver).
23.2 Consent of KPMG Peat Marwick LLP (Seattle).
23.3 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (See page II-6 and II-7).
II-3
<PAGE> 5
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 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(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 the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 this 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.
II-4
<PAGE> 6
(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 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.
II-5
<PAGE> 7
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 Englewood, State of Colorado, on June 17, 1998.
VERIO INC.
By: /s/ Justin L. Jaschke
-----------------------------------
Justin L. Jaschke
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, severally and not jointly, Justin L.
Jaschke, Peter B. Fritzinger and Carla Hamre Donelson, with full power to act
alone, as his or her true and lawful attorney-in-fact, with the power of
substitution, for and in such person's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each said attorney-in-fact full power and authority to
do and perform each and every act and thing requisite and necessary to be done
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorney-in-fact 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 dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Steven C. Halstedt Chairman of the Board June 17, 1998
----------------------
Steven C. Halstedt
/s/ Justin L. Jaschke Chief Executive Officer and Director June 17, 1998
--------------------- (Principal Executive Officer)
Justin L. Jaschke
/s/ James C. Allen Director June 17, 1998
------------------
James C. Allen
</TABLE>
II-6
<PAGE> 8
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Director June 17, 1998
--------------------
Trygve E. Myhren
/s/ Paul J. Salem Director June 17, 1998
-----------------
Paul J. Salem
/s/ Steven W. Schovee Director June 17, 1998
---------------------
Steven W. Schovee
/s/ George J. Still, Jr. Director June 17, 1998
------------------------
George J. Still, Jr.
/s/ Deb Mayfield Gahan Vice President of Finance and June 17, 1998
---------------------- Administration (Principal Accounting
Deb Mayfield Gahan Officer)
/s/ Peter B. Fritzinger Chief Financial Officer June 17, 1998
-----------------------
Peter B. Fritzinger
</TABLE>
II-7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- - ------- -----------
<S> <C>
4.1 Form of Second Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.5 to the
Registrant's Quarterly Report on Form 10-Q (Commission File No.
000-24219) which was filed on May 27, 1998).
4.2 Registrant's Bylaws (incorporated by reference to Exhibit 3.2
to the Registrant's Registration Statement on Form S-1
(Commission File No. 333-47099) which became effective on May
11, 1998 (the "Registration Statement on Form S-1")).
4.3 Registrant's 1996 Stock Option Plan, as amended (incorporated
by reference to Exhibit 10.9 to the Registration Statement on
Form S-1).
4.4 Registrant's 1997 California Stock Option Plan, as amended
(incorporated by reference to Exhibit 10.10 to the
Registration Statement on Form S-1).
4.5 Registrant's 1998 Stock Incentive Plan, as amended
(incorporated by reference to Exhibit 10.12 to the
Registration Statement on Form S-1).
4.6 Registrant's 1998 Non-Employee Director Stock Incentive Plan,
as amended (incorporated by reference to Exhibit 10.32 to the
Registration Statement on Form S-1).
4.7 Registrant's 1998 Employee Stock Purchase Plan, as amended
(incorporated by reference to Exhibit 10.11 to the
Registration Statement on Form S-1).
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of KPMG Peat Marwick LLP (Denver).
23.2 Consent of KPMG Peat Marwick LLP (Seattle).
23.3 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (See pages II-6 and II-7).
</TABLE>
II-8
<PAGE> 1
EXHIBIT 5.1
MORRISON & FOERSTER LLP
San Francisco, California
June 16, 1998
Verio Inc.
8005 South Chester Street, Suite 200
Englewood, Colorado 80112
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on June 16, 1998, and to be filed with the Securities and
Exchange Commission (the "SEC") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 12,265,667 shares of your
common stock, $.001 par value (the "Common Stock") which will be issuable under
the 1996 Stock Option Plan, the 1997 California Stock Option Plan, the 1998
Stock Incentive Plan, the 1998 Non-Employee Director Stock Incentive Plan, and
the 1998 Employee Stock Purchase Plan (the "Plans").
As your counsel in connection with the Registration Statement, we have
examined the proceedings taken by you in connection with the adoption of the
Plans and the authorization of the issuance of the shares of Common Stock under
the Plans (the "Plan Shares") and such documents as we have deemed necessary to
render this opinion.
Based upon the foregoing, it is our opinion that the Plan Shares, when
issued and outstanding pursuant to the terms of the Plans, will be validly
issued, fully paid and non-assessable shares of Common Stock.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
MORRISON & FOERSTER LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Verio Inc.:
We consent to the use of our reports incorporated by reference herein.
KPMG Peat Marwick LLP
Denver, Colorado
June 12, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
NorthWestNet, Inc.:
We consent to the use of our report relating to the financial statements of
NorthWestNet, Inc. as of June 30, 1996 and for the six months ended June 30,
1996 and the eight months ended February 28, 1997, and the financial statements
of NorthWest Academic Computing Consortium, Inc. as of June 30, 1995 and for the
year ended June 30, 1995 and the six months ended December 31, 1995,
incorporated by reference herein.
KPMG Peat Marwick LLP
Seattle, Washington
June 12, 1998
