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As filed with the Securities and Exchange Commission on April 19, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
USINTERNETWORKING, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-2078325
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
ONE USI PLAZA 21401-7478
ANNAPOLIS, MARYLAND (Zip Code)
(Address of Principal Executive Offices)
USINTERNETWORKING, INC. AMENDED AND RESTATED 1998 STOCK OPTION PLAN
MR. WILLIAM T. PRICE, ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
USINTERNETWORKING, INC.
ONE USI PLAZA
ANNAPOLIS, MARYLAND 21401-7478
(Name and address of agent for service)
(410) 897-4400
(Telephone number, including area code, of agent for service)
-------------------------
Copy to:
JAMES F. ROGERS, ESQ.
LATHAM & WATKINS
1001 PENNSYLVANIA AVENUE, N.W. SUITE 1300
WASHINGTON, D.C. 20004-2505
-------------------------
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
Title of Each Proposed Maximum Proposed Maximum Amount of
Class of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share Price Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.001 per share(1) 1,682,250 shares $2.64 $4,441,140 $1,234.64
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
Common Stock, par value
$0.001 per share(1) 1,695,556 shares $6.00 $10,173,336 $2,828.19
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
Common Stock, par value
$0.001 per share(1) 49,063 shares $3.36 $164,851.68 $45.83
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
Common Stock, par value
$0.001 per share(1) 1,255,381 shares $46.56(1) $58,450,539(1) $16,249.25
- --------------------------------------------------------------------------------------------------------
TOTALS 4,682,250 shares -- $20,417.91
- --------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933 based on the
average of the bid and ask price as reported on the Nasdaq National
Market as of April 15, 1999.
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PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by USINTERNETWORKING, Inc,
(the "Company") with the Securities and Exchange Commission (the "Commission")
are incorporated as of their respective dates in this Registration Statement on
Form S-8 (the "Registration Statement") by reference:
1. The Company's Prospectus filed with the Commission pursuant to
Rule 424(b) on April 12, 1999.
2. Description of the Company's Common Stock incorporated by
reference into the Company's Registration Statement on Form 8-A
filed with the Commission on April 8, 1999.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after 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 are deemed incorporated by reference in
this Registration Statement and are a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed to
be 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 such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock registered hereunder will
be passed upon for the Company by Latham & Watkins, Washington, D.C. Two
partners of Latham & Wathers each own 1,000 shares of Common Stock of the
Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") permits a Delaware corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise, against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement
3
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actually and reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceedings, had
no reasonable cause to believe such person's conduct was unlawful.
In the case of an action by or in the right of the corporation, Section
145 permits the corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interest of the corporation. No indemnification may be made in respect of any
claim, issue, or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
To the extent that a present or former director or officer of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in the preceding two paragraphs, Section
145 requires that such person be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
Section 145 provides that expenses (including attorneys' fees) incurred
by an officer or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the corporation as authorized in Section 145.
The Company's Amended and Restated Certificate of Incorporation (the
"Certificate") provides that an officer or director of the Company will not be
personally liable to the Company or its stockholders for monetary damages for
any breach of his fiduciary duty as an officer or director, except in certain
cases where liability is mandated by the DGCL. The provision has no effect on
any non-monetary remedies that may be available to the Company or its
stockholders, nor does it relieve the Company or its officers or directors from
compliance with federal or state securities laws. The Certificate also generally
provides that the Company shall indemnify, to the fullest extent permitted by
law, any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit investigation, administrative
hearing or any other proceeding (each, a "Proceeding") by reason of the fact
that he is or was a director or officer of the Company, or is or was serving at
the request of the Company as a director, officer, employee or agent of another
entity, against expenses incurred by him in connection with such Proceeding. An
officer or director shall not be entitled to indemnification by the Company if
(i) the officer or director did not act in good faith and in a manner reasonably
believed to be in, or not opposed to, the best interests of the Company, or (ii)
with respect to any criminal action or proceeding, the officer or director had
reasonable cause to believe his conduct was unlawful.
The Underwriting Agreement filed as Exhibit 1.1 to the Company's
Registration Statement on Form S-1 provides for indemnification by of the
Company and its directors and certain officers, and by the Company of the
Underwriters for certain liabilities arising under the Securities Act or
otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
4
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ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of this Registration
Statement, which are incorporated herein:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ----------------------
<S> <C>
4.1 Form of Second Restated Certificate of Incorporation of
the Registrant (incorporated by reference to Exhibit 3.2
to the Company's Registration Statement on Form S-1 (File
No. 333-70717))
4.2 Form of Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.4 to the Company's
Registration Statement on Form S-1 (File No. 333-70717))
4.3 Specimen Certificate for shares of Common Stock par value
$.001 (incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-1 (File No.
333-70717)).
4.4 USINTERNETWORKING, Inc. Amend and Restated 1998 Stock
Option Plan (incorporated by reference to Exhibit 10.29 to
the Company's Registration Statement on Form S-1 (File No.
333-70717)).
*5.1 Opinion of Latham & Watkins with respect to the validity
of shares being offered.
*23.1 Consent of Mahoney Cohen & Company
*23.2 Consent of Bassan & Associates S.C.
*23.3 Consent of Ernst & Young LLP regarding IIT financial
statements
*23.4 Consent of Ernst & Young LLP regarding USI financial
statements
*23.5 Consent of Latham & Watkins (included in Exhibit 5.1)
*24.1 Power of Attorney (included on signature page)
</TABLE>
- ----------
* Filed herewith.
ITEM 9. UNDERTAKINGS.
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.
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:
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(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
(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 these paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities and 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.
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 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 herein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
6
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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 Annapolis, State of Maryland, on April 19, 1999..
USINTERNETWORKING, INC.
By: /S/ ANDREW A. STERN
---------------------------------
Name: Andrew A. Stern
-------------------------------
Title: Executive Vice President and
Chief Financial Officer
------------------------------
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints
William T. Price and Andrew A. Stern, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all capacities, to
sign any or all further 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 attorney-in-fact and agent, 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 might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or any of them, or his or their substitute
or substitutes, may lawfully do or cause to be done by virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
SIGNATURES TITLE DATE
/S/ CHRISTOPHER R. MCCLEARY
- --------------------------- Chairman of the Board, Chief April 19, 1999
Christopher R. McCleary Executive Officer -----------
/S/ STEPHEN E. MCMANUS
- --------------------------- President and Director April 19, 1999
Stephen E. McManus -----------
/S/ JEFFERY L. MCKNIGHT
- --------------------------- Executive Vice President of April 19, 1999
Jeffery L. McKnight Operations and Client Services -----------
/S/ ANDREW A. STERN
- --------------------------- Chief Financial Officer and April 19, 1999
Andrew A. Stern Executive Vice President -----------
/S/ VINCENT L. ROMANO
- --------------------------- Senior Vice President World April 19, 1999
Vincent L. Romano Wide Sales -----------
/S/ R. DEAN MEISZER
- --------------------------- Director April 19, 1999
R. Dean Meiszer -----------
/S/ BENJAMIN DIESBACH
- --------------------------- Director April 19, 1999
Benjamin Diesbach -----------
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/S/ WILLIAM F. EARTHMAN
- --------------------------- Director April 19, 1999
William F. Earthman ----------
/S/ JOHN H. WYANT
- --------------------------- Director April 19, 1999
John H. Wyant ----------
/S/ JOSEPH R. ZELL
- --------------------------- Director April 19, 1999
Joseph R. Zell ----------
/S/ MICHAEL C. BROOKS
- --------------------------- Director April 19, 1999
Michael C. Brooks ----------
8
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Exhibit 5.1
LATHAM & WATKINS
[letterhead]
April 19, 1999
USINTERNETWORKING, INC.
One USI Plaza
Annapolis, Maryland 21404
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to USINTERNETWORKING, Inc. (the "Company"), and
we have examined the Registration Statement on Form S-8 (the "Registration
Statement"), to be filed with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1993, as
amended, of 4,682,250 shares of Common Stock (the "Shares") reserved for
issuance under the Amended and Restated 1998 Stock Option Plan (the "Plan").
We have examined such questions of law and fact as we have considered
necessary or appropriate for purposes of this opinion.
We are opining herein as to the effect on the subject transaction of
only the General Corporation Law of the State of Delaware, and we express no
opinion with respect to the applicability thereto or the effect thereon of
any other laws or as to any matters of municipal law or any other local
agencies within any state.
Subject to the foregoing and in reliance thereon, it is our opinion that
upon the exercise of options granted pursuant to the Plan and subject to the
Company completing all actions and proceedings required on its part to be
taken prior to the issuance of the Shares pursuant to the terms of the Plan
and the Registration Statement, including, without limitation, collection of
required payment for such shares, the Shares will be validly issued, fully
paid and non-assessable securities of the Company.
<PAGE>
LATHAM AND WATKINS
April 19, 1999
Page 2
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in
the Registration Statement, including the prospectus constituting a part
thereof, and any amendments thereto.
Very truly yours,
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of USINTERNETWORKING, Inc. of our report dated March
3, 1999, which appears on page F-37 of the Prospectus constituting part of
the Registration Statement on Form S-1 (No. 333-70717).
/s/ Mahoney Cohen & Company, CPA, P.C.
----------------------------------
New York, New York
April 19, 1999
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of USINTERNETWORKING, Inc. of our report dated
August 20, 1998, which appears on page F-26 of the Prospectus constituting
part of the Registration Statement on Form S-1 (No. 333-70717).
Bassan & Associates S.C.
/s/ Bassan & Associates S.C.
Friday April 16, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the USINTERNETWORKING, Inc. Amended and Restated
1998 Stock Option Plan of our report dated March 23, 1999, with respect to
the consolidated financial statements of I.I.T. Holding, Inc. and
subsidiaries, included in the Registration Statement and related Prospectus
of USINTERNETWORKING, Inc. for the years ended December 31, 1996 and 1997,
and for the period from January 1, 1998 through September 7, 1998, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
--------------------------------
Baltimore, Maryland
April 15, 1999
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the USINTERNETWORKING, Inc. Amended and Restated
1998 Stock Option Plan, of our report dated January 22, 1999, except as to
Note 21, as to which the date is March 22, 1999, with respect to the
consolidated financial statements of USINTERNETWORKING, Inc. included in the
Registration Statement and related Prospectus of USINTERNETWORKING, Inc. for
the period ended January 14, 1998 (date of inception) through December 31,
1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
--------------------------------
Baltimore, Maryland
April 15, 1999
