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As filed with the Securities and Exchange Commission on June 29, 2000
Registration Number 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------------
INTERLIANT, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-397-8980
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Two Manhattanville Road 10577
Purchase, New York (Zip Code)
(Address of Principal Executive Offices)
INTERLIANT, INC. 1998 STOCK OPTION PLAN
AMENDED AND RESTATED AS OF MARCH 23, 2000
(Full Title of the Plan)
Bruce S. Klein, Esq.
Senior Vice President, General Counsel
and Secretary
Interliant, Inc.
Two Manhattanville Road
Purchase, New York 10577
(914) 640-9000
(Name, address and telephone number of agent for service)
-------------------
Copies to:
E. Ann Gill, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
(212) 259-8000
-------------------
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
Proposed Proposed Maximum
Title Of Securities To Amount To Be Maximum Offering Aggregate Offering Amount Of
Be Registered Registered (1) Price Per Unit (2) Price (2) Registration Fee
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $0.01
per share 5,288,183(3) $20.6875 $109,399,285 $28,881
===============================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Interliant, Inc. Amended
and Restated 1998 Stock Option Plan (the "Plan") by reason of any stock
dividend, stock split, recapitalization, merger, consolidation or
reorganization of or by the Registrant which results in an increase in
the number of the Registrant's outstanding shares of Common Stock or
shares issuable pursuant to the options.
(2) In accordance with Rule 457(c) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), the maximum offering price per share is based
on the average of the high and low prices of Interliant's Common Stock
on June 27, 2000 ($20.6875) as reported on The Nasdaq National Market
(3) Represents additional shares reserved for issuance upon exercise of
stock options under the Registrant's 1998 Stock Option Plan. Shares
issuable upon exercise of stock options under the Registrant's 1998
Stock Option Plan were originally registered on a registration
statement on Form S-8 (Registration No. 333-83279) filed on July 20,
1999.
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Registration of Additional Securities
-------------------------------------
The Registrant has previously filed a registration statement on Form
S-8 (File No. 333-83279) with respect to shares of its common stock relating to
its 1998 Stock Option Plan. This registration statement is being filed with
respect to additional shares of the Registrant's common stock relating to this
plan.
Pursuant to General Instruction E. of Form S-8, the contents of the
Registrant's Registration Statement on Form S-8 (File No. 333-83279) are hereby
incorporated by reference. In addition, the following information is included
herein:
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission by Interliant, Inc. ("Interliant") (File No. 000-26115) are
incorporated herein by reference and made a part hereof:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 filed with the Securities and Exchange Commission
(the "SEC") on March 29, 2000.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000 filed with the SEC on May 15, 2000.
(c) The Registrant's Current Report on Form 8-KA filed with the SEC on May
22, 2000.
(c) The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form 8-A filed with the SEC on
May 18, 1999 under Section 12(g) of the Securities Exchange Act of
1934, as amended, including any amendment or report filed for the
purpose of updating such description.
All documents filed by Interliant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to 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.
The consolidated financial statements of Interliant and its
subsidiaries included in the Registration Statement for the fiscal year ended
December 31, 1999 have been incorporated herein by reference in reliance upon
the reports, also incorporated herein by reference, of Ernst
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& Young LLP, independent auditors, given on their authority as experts in
auditing and accounting.
ITEM 4. Description of Securities.
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel.
Not Applicable.
ITEM 6. Indemnification of Directors and Officers.
Interliant is a Delaware corporation. Reference is made to
Section 145 of the Delaware General Corporation Law as to indemnification by
Interliant of its officers and directors. The general effect of such law is to
empower a corporation to indemnify any of its officers and directors against
certain expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person to be indemnified
in connection with certain actions, suits or proceedings (threatened, pending or
completed) if the person to be indemnified acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Interliant's Amended and Restated Certificate of Incorporation
and Amended and Restated By-laws provide that Interliant shall indemnify
officers and directors and, to the extent permitted by the Board of Directors,
employees and agents of Interliant, to the full extent permitted by and in the
manner permissible under the laws of the State of Delaware. In addition, the
By-Laws permit the Board of Directors to authorize Interliant to purchase and
maintain insurance against any liability asserted against any director, officer,
employee or agent of Interliant arising out of his capacity as such.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
The documents listed hereunder are filed as exhibits hereto.
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Exhibit Number Description
-------------- -----------
4 Registrant's 1998 Amended and Restated Stock Option Plan
5.1 Opinion and Consent of Bruce S. Klein, General Counsel of
Registrant.
23.1 Consent of Bruce S. Klein, General Counsel of Registrant
(included in Exhibit 5 hereto).
23.2 Consent of Ernst & Young LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Smith Schafer & Associates, Ltd.
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 of 1933;
(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; and
(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)(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
Securities and Exchange Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 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 New York, State of New York, on the 29th day of
June, 2000.
INTERLIANT, INC.
By: /s/ HERBERT R. HRIBAR
--------------------------------------
Herbert R. Hribar
President and Chief Executive Officer
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
/s/ LEONARD J. FASSLER Co-Chairman of the Board June 29, 2000
----------------------
Leonard J. Fassler
/s/ BRADLEY A. FELD Co-Chairman of the Board June 29, 2000
-------------------
Bradley A. Feld
/s/ HERBERT R. HRIBAR President, Chief Executive Officer June 29, 2000
--------------------- and Director
Herbert R. Hribar
/s/ WILLIAM A WILSON Chief Financial Officer (Chief
-------------------- Financial and Accounting Officer) June 29, 2000
William A. Wilson
/s/ THOMAS C. DIRCKS Director June 29, 2000
--------------------
Thomas C. Dircks
/s/ JAY M. GATES Director June 29, 2000
----------------
Jay M. Gates
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/s/ MERRIL M. HALPERN Director June 29, 2000
---------------------
Merril M. Halpern
/s/ JOHN P. LANDRY Director June 29, 2000
------------------
John P. Landry
/s/ CHARLES R. LAX Director June 29, 2000
------------------
Charles R. Lax
/s/ STEPHEN W. MAGGS Director June 29, 2000
--------------------
Stephen W. Maggs
/s/ PATRICIA A.M. RILEY Director June 29, 2000
-----------------------
Patricia A.M. Riley
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INDEX TO EXHIBITS
Exhibit Number Description
-------------- -----------
4 Registrant's Amended and Restated 1998 Stock Option Plan
5.1 Opinion and Consent of Bruce S. Klein, General Counsel of
Registrant.
23.1 Consent of Bruce S. Klein, General Counsel of Registrant
(included in Exhibit 5 hereto).
23.2 Consent of Ernst & Young LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Smith Schafer & Associates, Ltd.
9
