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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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AppNet, Inc.
(Exact name of registrant as specified in its charter)
Delaware 52-2077860
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
6707 Democracy Boulevard,
Suite 1000
Bethesda, Maryland 20817
(Address of principal executive offices) (Zip Code)
AppNet, Inc. 1999 Stock Incentive Plan
(Full title of the plan)
Ken S. Bajaj With a copy to:
President and Chief Executive Officer
AppNet, Inc. Thomas E. Hartman, Esq.
6707 Democracy Boulevard, Foley & Lardner
Suite 1000 777 East Wisconsin Avenue
Bethesda, Maryland 20817 Milwaukee, Wisconsin 53202
(301) 581-2488 (414) 271-2400
(Name, address and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Maximum Proposed Maximum
Securities to be to be Offering Price Aggregate Offering Amount of
Registered Registered Per Share Price Registration Fee
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Common Stock, 6,055,000 $21.16 (1) $128,101,094(1) $33,820
$.0005 par value shares
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(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely
for the purpose of calculating the registration fee based on the average of
the high and low prices for AppNet, Inc. Common Stock as reported on the
NASDAQ National Market System on May 18, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part
I are not required to be filed with the Securities and Exchange Commission (the
"Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by AppNet, Inc. (the
"Company") are hereby incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000; and
(c) The description of the common stock, $.0005 par value, of the
Company contained in Item 1 of the Company's Registration Statement on Form 8-A,
dated as of June 4, 1999, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
after the date of filing of this Registration Statement and prior to such time
as the Company files a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby 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 a part hereof
from the date of filing of 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.
The Company's bylaws provide that the Company shall indemnify to the
fullest extent authorized by the Delaware General Corporation Law, each person
who is involved in
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any litigation or other proceeding because such person is or was a director or
officer of the Company, against all expense, loss or liability reasonably
incurred or suffered in connection therewith. The Company's bylaws provide that
a director or officer may be paid expenses incurred in defending any proceeding
in advance of its final disposition upon receipt by the Company of an
undertaking, by or on behalf of the director or officer, to repay all amounts so
advanced if it is ultimately determined that such director or officer is not
entitled to repay all amounts so advanced if it is ultimately determined that
such director or officer is not entitled to indemnification.
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify any director or officer of the corporation against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with any action, suit
or proceeding brought by reason of the fact that such person is or was a
director of officer of the corporation, if such person acted in good faith and
in a manner that 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, if he had no reason to believe his conduct was unlawful. In a
derivative action, (i.e., one brought by or on behalf of the corporation),
indemnification may be made only for expense, actually and reasonably incurred
by any director or officer in connection with the defense or settlement of such
an action or suit, if such person acted in good faith and in a manner that he
reasonably believed to in or not opposed to the best interests of the
corporation, except that no indemnification shall be made if such person shall
have been adjusted to be liable to the corporation, unless and only to the
extent that the court in which the action or suit was brought shall determine
that the defendant is fairly and reasonably entitled to indemnity for such
expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law,
the Company's certificate of incorporation eliminates the liability of a
director to the corporation or its stockholders for monetary damages for such
breach of fiduciary duty as a director, except for liabilities arising (a) from
any breach of the director's duty of loyalty to the corporation or its
stockholders; (b) from acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (c) under Section 174 of
the Delaware General Corporation Law; or (d) from any transaction from which the
director derived an improper personal benefit.
The Company maintains primary and excess insurance policies insuring
its directors and officers and those of its subsidiaries against certain
liabilities they may incur in their capacity as directors and officers. Under
such policies, the insurer, on behalf of the Company, may also pay amounts for
which the Company has granted indemnification to the directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4.1) AppNet, Inc. 1999 Stock Incentive Plan
(Incorporated by reference to Exhibit 10.2 to
AppNet, Inc.'s Quarterly Report on Form 10-Q for
the quarter ended September 30, 1999)
(4.2) Restated Certificate of Incorporation of AppNet,
Inc. (Incorporated by reference to Exhibit 3.1 to
AppNet, Inc.'s Form S-1 Registration Statement
(Registration No. 333-89877))
(5) Opinion of Foley & Lardner
(23.1) Consent of Arthur Andersen, LLP
(23.2) Consent of Foley & Lardner (contained in Exhibit 5
hereto)
(24) Power of Attorney relating to subsequent
amendments (included on the signature page to this
Registration Statement)
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, as amended;
(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
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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%
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)(1)(i) and (a)(1)(ii) of this section do
not apply if the registration statement is on Form S-3, S-8 or Form F-3, and 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
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statements.
(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) 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 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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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 Bethesda and State of Maryland, on this 24th day of
May, 2000.
APPNET, INC.
By: /s/ Jack Pearlstein
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Jack Pearlstein
Senior Vice President,
Chief Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
constitutes and appoints Ken S. Bajaj and William S. Dawson, and each of them
individually, his true and lawful attorneys-in-fact and agents, with full power
of substitution and revocation, 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
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 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 either
of them, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
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/s/ Ken S. Bajaj Chairman of the Board, May 24, 2000
- ----------------------- President and Chief
Ken S. Bajaj Executive Officer
(Principal Executive Officer)
/s/ Jack Pearlstein Senior Vice President, May 24, 2000
- ----------------------- Chief Financial Officer
Jack Pearlstein and Treasurer
(Principal Financial and
Accounting Officer)
/s/ Philip A. Canfield Director May 24, 2000
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Philip A. Canfield
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/s/ John Cross Director and Executive May 24, 2000
- ----------------------- Vice President
John Cross
/s/ Edward C. Meyer Director May 24, 2000
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Edward C. Meyer
/s/ Richard N. Perle Director May 24, 2000
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Richard N. Perle
Director
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Bruce V. Rauner
/s/ James Thompson Director May 24, 2000
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James Thompson
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EXHIBIT INDEX
Exhibit No. Exhibit
(4.1) AppNet, Inc. 1999 Stock Incentive Plan (Incorporated
by reference to Exhibit 10.2 to AppNet, Inc.'s
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999)
(4.2) Restated Certificate of Incorporation of AppNet,
Inc. (Incorporated by reference to Exhibit 3.1 to
AppNet, Inc.'s Form S-1 Registration Statement
(Registration No. 333-89877)
(5) Opinion of Foley & Lardner
(23.1) Consent of Arthur Andersen, LLP
(23.2) Consent of Foley & Lardner (contained in Exhibit 5
hereto)
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this Registration
Statement)
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CHICAGO FOLEY & LARDNER SACRAMENTO
DENVER FIRSTAR CENTER SAN DIEGO
JACKSONVILLE 777 EAST WISCONSIN AVENUE SAN FRANCISCO
LOS ANGELES MILWAUKEE, WISCONSIN 53202-5367 TALLAHASSEE
MADISON TELEPHONE (414) 271-2400 TAMPA
MILWAUKEE FACSIMILE (414) 297-4900 WASHINGTON, D.C.
ORLANDO WEST PALM BEACH
May 24, 2000
AppNet, Inc.
6707 Democracy Boulevard, Suite 1000
Bethesda, Maryland 20817
Gentlemen:
We have acted as counsel for AppNet, Inc., a Delaware corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), relating to 6,055,000 shares of the Company's common
stock, $.0005 par value (the "Common Stock"), which may be issued pursuant to
the AppNet, Inc. 1999 Stock Incentive Plan (the "Plan").
We have examined: (1) the Plan; (2) the Registration Statement; (3)
the Restated Certificate of Incorporation and By-laws of the Company, as amended
to date; (4) resolutions of the Company's Board of Directors relating to the
Plan and the issuance of securities thereunder; and (5) such other proceedings,
documents and records as we have deemed necessary to enable us to render this
opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the laws of the
State of Delaware.
2. The shares of Common Stock, when issued by the Company pursuant to
the terms and conditions of the Plan, will be validly issued, fully paid and
nonassessable and no personal liability will attach to the ownership thereof.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to the references to our firm therein. In giving our
consent, we do not admit that we are "experts" within the meaning of Section 11
of the Securities Act or within the category of persons whose consent is
required by Section 7 of the Securities Act.
Very truly yours,
/s/ Foley & Lardner
FOLEY & LARDNER
EXHIBIT 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 9, 2000
included in AppNet's Form 10-K for the year ended December 31, 1999.
/s/ Arthur Andersen LLP
May 22, 2000
