SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
NAVISITE, INC.
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(Exact name of registrant as specified in its charter)
Delaware 52-2137343
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(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
100 Brickstone Square, Andover, Massachusetts 01810
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(Address of Principal Executive Offices) (Zip Code)
NAVISITE, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN
NAVISITE, INC. 1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
NAVISITE, INC. AMENDED AND RESTATED 1998 EQUITY INCENTIVE PLAN
AND
NAVISITE, INC. AMENDED AND RESTATED 1998 DIRECTOR STOCK OPTION PLAN
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(Full title of the plan)
Joel B. Rosen
Chief Executive Officer
NaviSite, Inc.
100 Brickstone Square
Andover, Massachusetts 01810
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(Name and address of agent for service)
(978) 552-3300
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(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================
Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered per share offering price fee
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, 3,156,368(1) $36.56(2) $115,396,814.00(2)
par value $0.01 629,146(3) $0.01 $6,291.00
per share 73,416(3) $0.06 $4,405.00
245,500(3) $0.17 $41,735.00
86,826(3) $0.34 $29,521.00
149,188(3) $0.64 $95,480.00
153,750(3) $1.00 $153,750.00
84,500(3) $1.02 $86,190.00
279,250(3) $1.28 $357,440.00
720,166(3) $7.40 $5,329,228.00
257,750(3) $14.00 $3,608,500.00
- -------------------------------------------------------------------------------------------
Total 5,835,860 $125,109,354.00 $34,781
===========================================================================================
</TABLE>
(1) Includes 50,000 shares issuable under the 1999 Employee Stock Purchase
Plan, 250,000 shares issuable under the 1999 Stock Option Plan for Non-
Employee Directors and 2,856,368 shares issuable under the Amended and
Restated 1998 Equity Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with paragraphs (c) and (h) of Rule 457 under the Securities
Act of 1933, as amended (the "Securities Act"), based upon the high and
low per share prices of the Registrant's common stock as reported on
The Nasdaq National Market on October 25, 1999, a date within five
business days prior to the date of filing of this Registration
Statement.
(3) As set forth in Rule 457(h)(l) of the Securities Act, based on the
price at which the options may be exercised. Includes 2,604,492 shares
subject to presently outstanding options under the Amended and Restated
1998 Equity Incentive Plan and 75,000 shares subject to presently
outstanding options under the Amended and Restated 1998 Director Stock
Option Plan, as set forth below.
Of the 5,460,860 shares being registered hereunder for issuance under
the Amended and Restated 1998 Equity Incentive Plan: (i) 629,146 shares
are subject to presently outstanding options exercisable at $0.01 per
share; (ii) 73,416 shares are subject to presently outstanding options
exercisable at $0.06 per share; (iii) 245,500 shares are subject to
presently outstanding options exercisable at $0.17 per share; (iv)
36,826 shares are subject to presently outstanding options exercisable
at $0.34 per share; (v) 149,188 shares are subject to presently
outstanding options exercisable at $0.64 per share; (vi) 153,750 shares
are subject to presently outstanding options exercisable at $1.00 per
share; (vii) 84,500 shares are subject to presently outstanding options
exercisable at $1.02 per share; (viii) 279,250 shares are subject to
presently outstanding options exercisable at $1.28 per share; (ix)
720,166 shares are subject to presently outstanding options exercisable
at $7.40 per share; and (x) 232,750 shares are subject to presently
outstanding options exercisable at $14.00 per share. The remaining
2,856,368 shares are not subject to outstanding awards and are covered
in footnote (1) above.
Of the 75,000 shares being registered hereunder for issuance under the
Amended and Restated 1998 Director Stock Option Plan, 50,000 shares are
subject to presently outstanding options exercisable at $0.34 per share
and 25,000 are subject to presently outstanding options exercisable at
$14.00 per share.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are incorporated herein by reference (i) the prospectus
filed pursuant to Rule 424(b) of the Securities Act relating to the
Registration Statement on Form S-1 (Registration No. 333-83501) (the "Form
S-1") of NaviSite, Inc. (the "Registrant"), containing audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed by the Registrant with the Securities and
Exchange Commission, (ii) all other reports filed by the Registrant
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), since the end of the fiscal year covered
by the document referred to in (i) above and (iii) the description of the
common stock, par value $0.01 per share, of the Registrant contained in the
Registrant's registration statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant 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 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 Registrant's Amended and Restated Certificate of
Incorporation (the "Restated Certificate of Incorporation") provides that
no director of the Registrant shall be personally liable for any monetary
damages for any breach of fiduciary duty as a director, except to the
extent that the Delaware General Corporation Law prohibits the elimination
or limitation of liability of directors for breach of fiduciary duty.
The Registrant's Restated Certificate of Incorporation provides
that a director or officer of the Registrant (a) shall be indemnified by
the Registrant against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement incurred in connection with any
litigation or other legal proceeding (other than an action by or in the
right of the Registrant) brought against him by virtue of his position as a
director or officer of the Registrant if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful and
(b) shall be indemnified by the Registrant against all expenses (including
attorneys' fees) and amounts paid in settlement incurred in connection with
any action by or in the right of the Registrant brought against him by
virtue of his position as a director or officer of the Registrant if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant, except that no
indemnification shall be made with respect to any matter as to which such
person shall have been adjudged to be liable to the Registrant, unless and
only to the extent that the Court of Chancery of Delaware determines that,
despite such adjudication but in view of all of the circumstances, he is
entitled to indemnification of such expenses. Notwithstanding the
foregoing, to the extent that a director or officer has been successful, on
the merits or otherwise, including, without limitation, the dismissal of an
action without prejudice, he is required to be indemnified by the
Registrant against all expenses (including attorneys' fees) incurred in
connection therewith. Expenses shall be advanced to a director or officer
at his request, unless it is determined that he did not act in good faith
and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Registrant, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful; provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such
expenses.
As a condition precedent to the right of indemnification, the
director or officer must give the Registrant notice of the action for which
indemnity is sought and the Registrant has the right to participate in such
action or assume the defense thereof.
The Registrant's Restated Certificate of Incorporation further
provides that the indemnification provided therein is not exclusive and
provides that Registrant may enter into agreements with officers and
directors providing for indemnification rights and procedures different
from those set forth in the Registrant's Restated Certificate of
Incorporation.
Section 145 of the Delaware General Corporation Law provides
that a corporation has the power to indemnify a director, officer, employee
or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is
or is threatened to be made a party by reason of such position, if such
person shall have 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, in any criminal proceeding, if such person had no reasonable cause to
believe his conduct was unlawful; provided that, in the case of actions
brought by or in the right of the corporation, no indemnification shall be
made with respect to any matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that
the adjudicating court determines that such indemnification is proper under
the circumstances.
The Registrant has obtained directors' and officers' liability
insurance which would insure the directors and officers of the Registrant
against damages arising out of certain kinds of claims which might be made
against them based upon their negligent acts or omissions while acting in
their respective capacities as directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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4.1* Amended and Restated Certificate of Incorporation of the
Registrant
4.2* Amended and Restated By-Laws of the Registrant
4.3* Specimen Certificate representing shares of Common Stock of
the Registrant
4.4* Series C Convertible Preferred Stock Purchase Agreement dated
as of June 3, 1999 by and between NaviSite, Inc. and Dell USA
L.P.
4.5* Series D Convertible Preferred Stock Purchase Agreement dated
as of June 3, 1999 by and between NaviSite, Inc. and Microsoft
Corporation
4.6* Form of Investor Rights Agreement by and among NaviSite, Inc.
and CMGI, Inc.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of KPMG LLP
23.2 Consent of KPMG LLP (Servercast Communications, L.L.C.)
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (contained
in the opinion filed as Exhibit 5.1 to this Registration
Statement)
24 Power of Attorney (included on the signature page of this
Registration Statement)
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* Incorporated herein by reference to the Registrant's Registration
Statement on Form S-1, as amended (File No. 333-83501).
Item 9. Undertakings.
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. 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 and
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 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 set forth in the Registration Statement;
provided, however, that paragraphs (1)(i) and (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
Commission by the Registrant pursuant to Section 13 or 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, 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.
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 therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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 provisions described
under Item 6 above, 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.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, as amended, 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
Andover, State of Massachusetts, on October 29, 1999.
NAVISITE, INC.
By /s/ Joel B. Rosen
--------------------------------
Joel B. Rosen
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Joel B. Rosen, Chief
Executive Officer, and Kenneth W. Hale, Chief Financial Officer, Treasurer
and Secretary, and each of them individually, as their true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for them and in their names, places and steads, 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 the 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 they 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 or her
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 indicated on October 29, 1999.
Signature Title
--------- -----
/s/ Joel B. Rosen Chief Executive Officer and Director
- ---------------------------- (Principal Executive Officer)
Joel B. Rosen
/s/ Kenneth W. Hale Chief Financial Officer, Treasurer
- ---------------------------- and Secretary (Principal Financial
Kenneth W. Hale and Accounting Officer)
/s/ Robert B. Eisenberg President and Director
- ----------------------------
Robert B. Eisenberg
/s/ David S. Wetherell Chairman of the Board of Directors
- ----------------------------
David S. Wetherell
/s/ Craig D. Goldman Director
- ----------------------------
Craig D. Goldman
/s/ Andrew J. Hajducky III Director
- ----------------------------
Andrew J. Hajducky III
/s/ Stephen D.R. Moore Director
- ----------------------------
Stephen D.R. Moore
EXHIBIT INDEX
NAVISITE, INC.
Exhibit
Number Description
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4.1* Amended and Restated Certificate of Incorporation of the
Registrant
4.2* Amended and Restated By-Laws of the Registrant
4.3* Specimen Certificate representing shares of Common Stock of
the Registrant
4.5* Series C Convertible Preferred Stock Purchase Agreement dated
as of June 3, 1999 by and between NaviSite, Inc. and Dell USA
L.P.
4.6* Form of Investor Rights Agreement by and among NaviSite, Inc.
and CMGI, Inc.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of KPMG LLP
23.2 Consent of KPMG LLP (Servercast Communications, L.L.C.)
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (contained
in the opinion filed as Exhibit 5.1 to this Registration
Statement)
24 Power of Attorney (included on the signature page of this
Registration Statement)
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* Incorporated herein by reference to the Registrant's Registration
Statement on Form S-1, as amended (File No. 333-83501).
Exhibit 5.1
[Letterhead of
Skadden, Arps, Slate, Meagher & Flom LLP
One Beacon Street
Boston, Massachusetts 02108-3194
(617) 573-4800]
October 29, 1999
NaviSite, Inc.
100 Brickstone Square
Andover, Massachusetts 01810
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to NaviSite, Inc., a Delaware
corporation (the "Registrant"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement"), for the
purpose of registering with the Securities and Exchange Commission (the
"Commission"), under the Securities Act of 1933, as amended (the
"Securities Act"): (i) 50,000 shares (the "Stock Purchase Shares") of
common stock, par value $0.01 per share ("Common Stock"), of the Registrant
issuable upon the exercise of options granted under the Registrant's 1999
Employee Stock Purchase Plan (the "Stock Purchase Plan"); (ii) 250,000
shares of Common Stock (the "1999 Director Shares") issuable upon the
exercise of options granted under the Registrant's 1999 Stock Option Plan
for Non-Employee Directors (the "1999 Director Plan"); (iii) 5,460,860
shares of Common Stock (the "Incentive Shares") issuable upon the exercise
of options granted under the Registrant's Amended and Restated 1998 Equity
Incentive Plan (the "Equity Incentive Plan"); and (iv) 75,000 shares of
Common Stock (the "1998 Director Shares" and, together with the Stock
Purchase Shares, the 1999 Director Shares and the Incentive Shares, the
"Shares"), issuable upon the exercise of options granted under the
Registrant's Amended and Restated 1998 Director Stock Option Plan (the
"1998 Director Plan").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement as filed with the Commission on the date hereof,
(ii) the Stock Purchase Plan, (iii) the 1999 Director Plan, (iv) the Equity
Incentive Plan, (v) the 1998 Director Plan, (vi) the Amended and Restated
Certificate of Incorporation and the Amended and Restated By-Laws of the
Registrant, each as currently in effect, (vii) a specimen certificate
representing the Common Stock and (viii) certain resolutions adopted by the
Board of Directors of the Registrant relating to the issuance of the Shares
and certain related matters. We also have examined such records of the
Registrant and such agreements, certificates of public officials and such
other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinion set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such copies. In
making our examination of documents executed or to be executed by parties
other than the Registrant, we have assumed that such parties had or will
have the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof on
such parties. As to any facts material to the opinion expressed herein
which we have not independently established or verified, we have relied
upon oral or written statements and representations of officers and other
representatives of the Registrant and others.
Members of our firm are admitted to the Bar in the State of
Delaware, and we do not express any opinion as to the laws of any
jurisdiction other than the General Corporation Law of the State of
Delaware.
Based upon and subject to the foregoing, we are of the opinion
that the issuance of such Shares has been duly authorized and, when the
Shares are issued and paid for in accordance with the terms and conditions
of the Stock Purchase Plan, the 1999 Director Plan, the Equity Incentive
Plan or the 1998 Director Plan, as applicable, such Shares will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving such
consent, we do not thereby admit that we are included in the category of
persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished by us, as your special counsel, in
connection with the filing of the Registration Statement with the
Commission and, except as provided in the immediately preceding paragraph,
is not to be used, circulated, quoted or otherwise referred to for any
other purpose or relied upon by any other person without our prior written
permission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
NaviSite, Inc.:
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of NaviSite, Inc., of our report dated August 27,
1999, except as to Note 14, which is dated as of October 8, 1999, with
respect to the consolidated balance sheets of NaviSite, Inc. as of July 31,
1998 and 1999, and the related consolidated statements of operations,
stockholders' equity (deficit) and cash flows for each of the years in the
three-year period ended July 31, 1999, which report appears in the
Registration Statement on Form S-1 (Registration No. 333-83501) filed by
the Company under the Securities Act of 1933, as amended, which was
declared effective by the Securities and Exchange Commission on October 21,
1999.
/s/ KPMG LLP
KPMG LLP
Boston, Massachusetts
October 29, 1999
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Members
Servercast Communications, L.L.C.:
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of NaviSite, Inc. of our report dated May 28, 1999,
with respect to the consolidated balance sheets of Servercast
Communications, L.L.C. as of December 31, 1997 and June 30, 1998, and the
related statements of operations, members' equity (deficit), and cash flows
for the period from inception (February 6, 1997) through December 31, 1997
and for the six months ended June 30, 1998, which report appears in the
Registration Statement on Form S-1 (Registration No. 333- 83501) filed by
the Company under the Securities Act of 1933, as amended, which was
declared effective by the Securities and Exchange Commission on October 21,
1999.
/s/ KPMG LLP
KPMG LLP
Boston, Massachusetts
October 29, 1999
