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As filed with the Securities and Exchange Commission on November 22, 1999
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAIS INTERNET, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 52-2066769
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1255 22nd Street, N.W.
Washington, D.C. 20037
(Address of Principal Executive Office, Including Zip Code)
CAIS INTERNET, INC. 1998 AMENDED AND RESTATED EQUITY INCENTIVE PLAN
AND
ATCOM, INC. 1996 STOCK OPTION/STOCK ISSUANCE PLAN
(Full Title of the Plans)
Ulysses G. Auger, II
Chief Executive Officer and Chairman
CAIS Internet, Inc.
1255 22nd Street, N.W.
Washington, D.C. 20037
(Name and Address of Agent for Service)
(202) 715-1300
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Morris DeFeo, Esq.
Morrison & Foerster LLP
2000 Pennsylvania Avenue, NW, Suite 5500
Washington, D.C. 20006-1888
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of maximum Proposed maximum
securities to be Amount to be offering price per aggregate offering price Amount of
registered registered (1) share (2) (2) registration fee
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<S> <C> <C> <C> <C>
Common Stock, $0.01 3,500,000 $ 14.31 $ 50,085,000 $ 13,923.63
par value per share
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(1) The number of shares of CAIS Internet, Inc. Common Stock to be issued gives
effect, in part, to the exchange ratio of 0.3553 shares of CAIS Internet,
Inc. Common Stock for each share of Atcom, Inc. Common Stock originally
issuable under the Atcom, Inc. 1996 Stock Option/Stock Issuance Plan, as
provided in the Amended and Restated Agreement and Plan of Merger dated
August 4, 1999 by and among CAIS Internet, Inc., CIAM Corp. and Atcom, Inc.
(2) Estimated solely for purposes of calculating the registration fee, and based
upon the fixed exercise prices of outstanding options in accordance with
Rule 457(h) under the Securities Act of 1933, as amended (the "Securities
Act").
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) and Rule 457(c) under the Securities Act of
1933, based upon an average of the high and low prices of CAIS Internet,
Inc. common stock reported on the Nasdaq National Market on November 18,
1999.
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EXPLANATORY NOTE
This registration statement has been prepared in accordance with the
requirements of Form S-8 under the Securities Act to register 3,500,000 shares
of the Common Stock of CAIS Internet, Inc., a Delaware corporation (the
"Registrant"), issuable to eligible employees, directors, consultants and
advisors under the Registrant's 1998 Amended and Restated Equity Incentive Plan
and the Atcom, Inc. 1996 Stock Option/Stock Issuance Plan assumed by Registrant
upon the merger of Registrant's wholly owned subsidiary, CIAM Corp., a
California corporation, with and into Atcom, Inc., a California corporation,
which plan was previously an obligation of Atcom, Inc.
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 CAIS Internet, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference herein:
(a) The Registrant's prospectus dated May 20, 1999 filed pursuant to Rule
424(b) under the Securities Act, which contains audited financial statements
for the Registrant's latest fiscal year for which such statements have been
filed.
(b) All reports filed pursuant to Sections 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the prospectus referred to in
(1) above.
(c) The description of the common stock of the Registrant, $.01 par value
per share (the "Common Stock"), contained in the registration statement filed
as of May 17, 1999 under Section 12 of the Exchange Act, including any
amendment or report filed for purposes 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
2
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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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which permits a corporation in its certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(1) for any breach of the director's fiduciary duty of loyalty to the
corporation or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) pursuant
to Section 174 of the DGCL (providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions), or (4) for any
transaction from which the director derived an improper personal benefit. The
Registrant's Certificate of Incorporation contains provisions permitted by
Section 102(b)(7) of the DGCL.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including directors and officers, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such director, officer, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal actions or
proceedings, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify directors and/or officers in an action or
suit by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the director
or officer is adjudged to be liable to the corporation. Where a director or
officer is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses which such director or officer actually and reasonably incurred.
The Registrant's Certificate of Incorporation provides indemnification of
directors and officers of the Registrant to the fullest extent permitted by the
DGCL.
Item 7. Exemption From Registration Claimed.
Not applicable.
3
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Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings.
a. The 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 this 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
herein; and
(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 this Registration Statement;
provided, however, that paragraphs (i) and (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 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 this 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 in the
initial bona fide offering thereof.
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
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 Securities Act and will be governed by the
final adjudication of such issue.
4
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SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, the Registrant,
CAIS Internet, Inc., 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 Washington, D.C., on November 22, 1999.
CAIS INTERNET, INC.
By: /s/ Ulysses G. Auger, II
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Ulysses G. Auger, II
President and Chief Executive Officer
POWER OF ATTORNEY
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Each person whose signature appears below constitutes and appoints Ulysses
G. Auger, II, and Michael Plantamura, and each of them, as attorneys-in-fact,
each with the power of substitution, for him in any and all capacities, to sign
any amendment to this Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorneys-in-fact, 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 the said attorney-
in-fact or his substitute or substitutes, 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 date indicated.
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<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ Ulysses G. Auger, II President, Chief November 22, 1999
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Ulysses G. Auger, II Executive Officer and
Director (Principal
Executive Officer)
/s/ Barton R. Groh Chief Financial Officer November 22, 1999
------------------------------
Barton R. Groh (Principal Financial
and Accounting Officer)
/s/ Ulysses G. Auger, Sr. Director November 22, 1999
------------------------------
Ulysses G. Auger, Sr.
/s/ William M. Caldwell, IV Director November 22, 1999
------------------------------
William M. Caldwell, IV
/s/ Richard F. Levin
------------------------------ Director November 22, 1999
Richard F. Levin
/s/ Vernon Fotheringham Director November 22, 1999
------------------------------
Vernon Fotheringham
/s/ S. Theodore Ammon Director November 22, 1999
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S. Theodore Ammon
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5
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INDEX TO EXHIBITS
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Exhibit
Number Description
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on the signature page of this Registration
Statement)
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Exhibit 5.1
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MORRISON & FOERSTER LLP
2000 Pennsylvania Avenue, Suite 5500
Washington, D.C. 20006-1888
202-887-1500 * FAX 202-887-0764
November 22, 1999
CAIS Internet, Inc.
1255 22/nd/ Street, N.W.
Washington, D.C. 20037
Re: CAIS Internet, Inc. Amended and Restated 1998 Equity Incentive Plan
(the "CAIS Plan") and Atcom, Inc. 1996 Stock Option/Stock Issuance
Plan (the "Atcom Plan")
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on November 22, 1999, and to be filed with the Securities and
Exchange Commission in connection with the registration under the Securities Act
of 1933, as amended (the "Securities Act"), of an aggregate of 3,500,000 shares
of your common stock, $.01 par value (the "Common Stock"), which will be
issuable under the CAIS Plan and the Atcom Plan.
As your counsel in connection with the Registration Statement, we have examined
the proceedings taken by you in connection with the adoption of the CAIS Plan
and the assumption of the Atcom Plan by CAIS Internet, Inc., and such documents
as we have deemed necessary to render this opinion, in connection therewith.
Based upon the foregoing, it is our opinion that the Common Stock, when issued
and outstanding pursuant to the terms of the CAIS Plan and the Atcom Plan, will
be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ Morrison & Foerster LLP
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Exhibit 23.2
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
CAIS Internet, Inc. on Form S-8 of our report dated October 22, 1999 on the
financial statements of ATCOM, Inc. appearing in the Form 8-K/A of CAIS
Internet, Inc. dated November 12, 1999.
/S/ DELOITTE & TOUCHE LLP
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San Diego, California
November 19, 1999
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Exhibit 23.3
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated
February 19, 1999 (except with respect to the matters discussed in Note 15 to
the consolidated financial statements, as to which the date is May 16, 1999)
included in CAIS Internet, Inc.'s registration statement on Form S-1 (File No.
333-72769) and to all references to our Firm included in this registration
statement.
/s/Arthur Andersen LLP
Vienna, Virginia
November 19, 1999
