<PAGE> 1
As filed with the Securities and Exchange Commission on October 20, 1999
Registration No. 333-
================================================================================
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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INTERNAP NETWORK SERVICES CORPORATION
(Exact name of registrant as specified in its charter)
WASHINGTON 91-1896926
(State of Incorporation) (I.R.S. Employer Identification No.)
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601 UNION STREET, SUITE 1000
SEATTLE, WASHINGTON 98101
(Address of principal executive offices)
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1998 STOCK OPTION/STOCK ISSUANCE PLAN
1999 EQUITY INCENTIVE PLAN
1999 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
----------------
PAUL E. MCBRIDE, CHIEF FINANCIAL OFFICER COPIES TO:
THOMAS B. YOUTH, ESQ., DIRECTOR OF LEGAL AFFAIRS CHRISTOPHER W. WRIGHT, ESQ.
INTERNAP NETWORK SERVICES CORPORATION H. MARLOW GREEN, ESQ.
601 UNION STREET, SUITE 1000 COOLEY GODWARD LLP
SEATTLE, WASHINGTON 98101 5200 CARILLON POINT
(206) 441-8800 KIRKLAND WASHINGTON 98033
(Name, address, including zip code, (425) 893-7700
and telephone number, including area code,
of agent for service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Aggregate Registration
to be Registered Registered(1) Price per Share Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, $.001 PAR VALUE, SUBJECT TO OUTSTANDING
OPTIONS WITH FIXED EXERCISE PRICES UNDER THE:
- --------------------------------------------------------------------------------------------------------------------------
1998 Stock Option/Stock Issuance Plan 3,900,828 $0.06-$0.80 $ 1,315,837(2) $ 366
- --------------------------------------------------------------------------------------------------------------------------
1999 Equity Incentive Plan 3,467,000 $0.06-$13.00 $ 21,909,000(2) $ 6,091
- --------------------------------------------------------------------------------------------------------------------------
1999 Non-Employee Directors' Stock Option Plan 240,000 $20.00 $ 4,800,000 $ 1,335
- --------------------------------------------------------------------------------------------------------------------------
COMMON STOCK, $.001 PAR VALUE, NOT SUBJECT TO
OUTSTANDING OPTIONS OR WITHOUT FIXED EXERCISE
PRICES UNDER THE:
- --------------------------------------------------------------------------------------------------------------------------
1999 Equity Incentive Plan 3,033,000 $65.19 $197,721,270(3) $54,967
- --------------------------------------------------------------------------------------------------------------------------
1999 Non-Employee Directors' Stock Option Plan 260,000 $65.19 $ 16,949,400(3) $ 4,712
- --------------------------------------------------------------------------------------------------------------------------
1999 Employee Stock Purchase Plan 1,500,000 $65.19 $ 97,785,000(3) $27,185
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
such employee benefit plans as the result of any future stock split, stock
dividend or similar adjustment of the Registrant's outstanding Common
Stock.
<PAGE> 2
(2) Pursuant to Rule 457(h), the offering price is based upon the exercise
prices for shares subject to outstanding options granted by InterNAP
Network Services Corporation (the "Company") under the 1998 Stock
Option/Stock Issuance Plan and the 1999 Equity Incentive Plan as follows:
Common Stock issuable pursuant to outstanding options under the
1998 STOCK OPTION/STOCK ISSUANCE PLAN
<TABLE>
<CAPTION>
OFFERING PRICE PER AGGREGATE OFFERING
NUMBER OF SHARES SHARE PRICE
---------------- ----- -----
<S> <C> <C>
1,068,475 $0.06 $ 64,109
1,363,853 $0.15 $204,578
345,000 $0.43 $148,350
1,123,500 $0.80 $898,800
</TABLE>
Common Stock issuable pursuant to outstanding options under the
1999 EQUITY INCENTIVE PLAN
<TABLE>
<CAPTION>
OFFERING PRICE PER AGGREGATE OFFERING
NUMBER OF SHARES SHARE PRICE
---------------- ----- -----
<S> <C> <C>
1,725,000 $ 4.00 $6,900,000
219,000 $ 5.00 $1,095,000
70,000 $ 6.00 $ 420,000
46,000 $ 7.00 $ 322,000
714,000 $ 8.00 $5,712,000
518,000 $10.00 $5,185,000
175,000 $13.00 $2,275,000
</TABLE>
(3) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of 1933,
as amended (the "Securities Act"). The price per share is estimated to be
$65.19 based on the average of the high ($69.25) and low ($61.125) sales
prices of the Company's Common Stock as reported on the Nasdaq Stock Market
for October 15, 1999.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Plans pursuant to Rule 428(b)(1) of the Securities
Act of 1933, as amended, (the "Securities Act").
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by InterNAP Network Services Corporation,
a Washington corporation (the "Company"), with the Securities and Exchange
Commission are incorporated by reference into this Registration Statement:
(a) The final prospectus filed under Rule 424(b) of the Securities
Act contained in the Company's Registration Statement on Form S-1 (File No.
333-84035), filed September 29, 1999, under the Securities Act including any
amendments or reports filed for the purpose of updating such prospectus; and
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed September 7, 1999, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendments or reports filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
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 to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of the Common Stock offered hereby will be
passed upon for the Company by Cooley Godward LLP, Kirkland, Washington ("Cooley
Godward"). As of the date of this Prospectus, certain members and associates of
Cooley Godward own an aggregate of 46,296 shares of Common Stock through an
investment partnership.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a court to award, or a corporation's
board of directors to grant indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act. The directors and officers of the
Company also may be indemnified against liability they may incur for serving in
that capacity pursuant to a liability insurance policy maintained by the Company
for such purpose.
Section 23B.08.320 of the WBCA authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, knowing violations of law or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. The Company's Amended and Restated Articles of Incorporation, as
amended by Articles of Amendment (the "Articles of Incorporation"), contain
provisions implementing, to the fullest extent permitted by Washington law, such
limitations on a director's liability to the Company and its shareholders. To
the extent the provisions of the Articles of Incorporation provide for
indemnification of directors or officers for liabilities arising
1.
<PAGE> 4
under the Securities Act, those provisions are, in the opinion of the Securities
and Exchange Commission (the "Commission"), against public policy as expressed
in the Securities Act, and they are therefore unenforceable.
The Company's Bylaws provide that it will indemnify its directors and
officers and may indemnify its other officers and employees and other agents to
the fullest extent permitted by law.
The Company has entered into certain indemnification agreements with its
directors and certain of its officers. These indemnification agreements provide
the Company's directors and certain of its officers with indemnification to the
maximum extent permitted by the WBCA.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4.1* Form of Amended and Restated Articles of Incorporation of InterNAP.
4.2* Form of Amended and Restated Bylaws of InterNAP.
4.3* Specimen Common Stock Certificate
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1* 1998 Stock Option/Stock Issuance Plan.
99.2* Form of 1998 Stock Option Agreement.
99.3* 1999 Equity Incentive Plan.
99.4* Form of 1999 Equity Incentive Plan Stock Option Agreement.
99.5* 1999 Non-Employee Directors' Stock Option Plan.
99.6* Form of 1999 Non-Employee Directors' Stock Option Agreement.
99.7* 1999 Employee Stock Purchase Plan.
</TABLE>
* Documents incorporated by reference from the Company's Registration Statement
on Form S-1, as amended (333-84035), declared effective by the Commission on
September 29, 1999.
ITEM 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
2.
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(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 a 20% 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 the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(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 by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. 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.
3.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company 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 Seattle, State of Washington, on October 19,
1999.
INTERNAP NETWORK SERVICES CORPORATION
a Washington corporation
By: /s/ Paul E. McBride
------------------------------------------
Paul E. McBride
Title: Chief Financial Officer and Vice President
of Finance
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul E. McBride and Anthony C. Naughtin,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, 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, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the 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 connection therewith, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or
their or his substitutes or substitute, may lawfully 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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Paul E. McBride Chief Financial Officer and Vice October 19, 1999
- ------------------------------------ President of Finance
PAUL E. MCBRIDE
/s/ Anthony C. Naughtin Chief Executive Officer and October 19, 1999
- ------------------------------------ Director
ANTHONY C. NAUGHTIN
/s/ Eugene Eidenberg Chairman of the Board October 19, 1999
- ------------------------------------
EUGENE EIDENBERG
/s/ William J. Harding Director October 19, 1999
- ------------------------------------
WILLIAM J. HARDING
/s/ Fredric W. Harman Director October 19, 1999
- ------------------------------------
FREDRIC W. HARMAN
/s/ Robert J. Lunday, Jr. Director October 19, 1999
- ------------------------------------
ROBERT J. LUNDAY, JR.
/s/ Kevin L. Ober Director October 19, 1999
- ------------------------------------
KEVIN L. OBER
/s/ Robert D. Shurtleff, Jr. Director October 19, 1999
- ------------------------------------
ROBERT D. SHURTLEFF, JR.
</TABLE>
4.
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4.1* Form of Amended and Restated Articles of Incorporation of InterNAP.
4.2* Form of Amended and Restated Bylaws of InterNAP.
4.3* Specimen Common Stock Certificate
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages.
99.1* 1998 Stock Option/Stock Issuance Plan.
99.2* Form of 1998 Stock Option Agreement.
99.3* 1999 Equity Incentive Plan.
99.4* Form of 1999 Equity Incentive Plan Stock Option Agreement.
99.5* 1999 Non-Employee Directors' Stock Option Plan.
99.6* Form of 1999 Non-Employee Directors' Stock Option Agreement.
99.7* 1999 Employee Stock Purchase Plan.
</TABLE>
* Documents incorporated by reference from the Company's Registration
Statement on Form S-1, as amended (333-84035), declared effective by the
Commission on September 29, 1999.
5.
<PAGE> 1
EXHIBIT 5.1
OPINION OF COOLEY GODWARD LLP
October 19, 1999
InterNAP Network Services Corporation
601 Union Street, Suite 1000
Seattle, WA 98101
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by InterNAP Network Services Corporation (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission") covering up to 12,400,828
shares of the Company's Common Stock, $.001 par value (the "Shares"), for
issuance (i) pursuant to the Company's 1998 Stock Option/Stock Issuance Plan,
1999 Equity Incentive Plan, 1999 Non-Employee Directors' Stock Option Plan, and
1999 Employee Stock Purchase Plan (collectively, the "Plans"), and (ii) upon the
exercise of outstanding options granted under the Plans (the "Options").
In connection with this opinion, we have examined and relied upon the
Registration Statement and related Prospectus, the Company's Articles of
Incorporation, as amended, and Bylaws, as currently in effect, and the originals
or copies certified to our satisfaction of such records, documents,
certificates, memoranda and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Registration
Statement, the Plans, options granted thereunder and the Options, will be
validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Christopher W. Wright
----------------------------------
Christopher W. Wright
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated April 2, 1999, relating to the
financial statements and financial statement schedule of InterNAP Network
Services Corporation which appear in InterNAP Network Services Corporation's
Registration Statement on Form S-1, as amended (File No. 333-84035).
/s/ PricewaterhouseCoopers LLP
- ------------------------------------
Seattle, Washington
October 18, 1999
