<PAGE>
As filed with the Securities and Exchange Commission on May 26, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________
PSINet Inc.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
New York 4813 16-1353600
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
510 Huntmar Park Drive, Herndon, Virginia 20170
(703) 904-4100
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
David N. Kunkel, Esq.
Executive Vice President and General Counsel
PSINet Inc.
510 Huntmar Park Drive, Herndon, Virginia 20170
Telephone No.: (703) 904-4100/Facsimile No.: (703) 904-9527
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_____________
Copies To:
Nixon, Hargrave, Devans & Doyle LLP
437 Madison Avenue, New York, New York 10022
Attention: Richard F. Langan, Jr., Esq.
Telephone No.: (212) 940-3140/Facsimile No.: (212) 940-3111
_____________
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_] _____________________.
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] _______________________.
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<CAPTION>
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CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Offering Amount of Registration
Securities to be Registered Registered Per Unit (1) (2) Price (1) (2) Fee
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 6,862,000 shares $43.71875 $299,998,063 $83,400
per share
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</TABLE>
(1) Based on the average of the closing bid and asked price of $43.71875 per
share of Common Stock at close of business on May 25, 1999.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to the provisions of Rule 457(c) under the Securities Act of 1933, as
amended, on the basis of the high and low value prices of the Registrant's
Common Stock on the Nasdaq National Market on May 25, 1999.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 26, 1999
Prospectus
PSINet Inc.
6,862,000 Shares of Common Stock
____________________________________________
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION RELATING TO THESE SECURITIES IS DECLARED
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS
NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE IS NOT PERMITTED.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
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<C> <S>
PSINet:
. We are a leading independent global provider of . The stock will be issued at such prices and on such
Internet solutions to businesses. terms as we determine at the time of issuance by
negotiation with the owners or officers of the
. PSINet Inc. companies to be acquired.
510 Hutmar Park Drive
Herndon, Virginia 20170 . We expect that the stock issued in acquisitions will
(703) 904-4100 be valued at prices reasonably related to the market
price of our common stock at the time of the
The Offer: acquisition. We have not fixed a period of time within
which the stock may be offered or sold.
. We may offer and issue, from time to time, up
to 6,862,000 shares of our common stock, par value . Our common stock trades on The Nasdaq Stock
$0.01 per share, in connection with acquisitions Market's National Market under the symbol "PSIX."
of other businesses or assets. On May 25, 1999, the last reported sale price for
our common stock was $43.71875
. We anticipate that any acquisition will consist
principally of acquisitions of businesses and . We will pay all of the expenses of this offering.
assets. The consideration for such acquisitions There will not be any underwriting discounts or
may consist of our shares of common stock, cash, commissions in connection with the issuance of stock
assumption of liabilities or any combination in business acquisitions.
thereof.
</TABLE>
____________________________________________
Investment in the common stock involves risk. See "Risk Factors"
incorporated in this prospectus by reference or contained in a supplement
to this prospectus.
This prospectus may be used by persons who receive shares of common stock
in connection with acquisitions and who wish to resell the shares. We have
not authorized any person to use this prospectus in connection with resales
of shares without our prior written consent.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities, or determined if
this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
____________________________________________
________ __, 1999
<PAGE>
TABLE OF CONTENTS
Page
----
PROSPECTUS SUMMARY....................................................... 3
SPECIAL NOTE ABOUT FORWARD-LOOKING STATEMENTS............................ 4
USE OF PROCEEDS.......................................................... 5
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY.......................... 5
DESCRIPTION OF CAPITAL STOCK............................................. 6
DESCRIPTION OF INDEBTEDNESS.............................................. 11
LEGAL MATTERS............................................................ 15
EXPERTS.................................................................. 15
DOCUMENTS INCORPORATED BY REFERENCE...................................... 15
ABOUT THIS PROSPECTUS.................................................... 16
WHERE YOU CAN FIND MORE INFORMATION...................................... 17
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PROSPECTUS SUMMARY
This summary highlights some information from this prospectus. Because
this is a summary, it may not contain all of the information that may be
important to you. You should read the entire prospectus, including the Risk
Factors and the financial statements before making an investment decision.
We are a leading global provider of Internet solutions to businesses. We
provide Internet connectivity and Web hosting services to customers in 90 of the
100 largest metropolitan statistical areas in the U.S. and in 14 of the 20
largest global telecommunications markets. In addition to these services, we
also offer a suite of value-added products and services that are designed to
enable our customers to maximize utilization of the Internet to more efficiently
communicate with their customers, suppliers, business partners and remote office
locations. We conduct our business through operations organized into five
geographic operating segments--the U.S., Canada, Latin America, Europe and
Asia. Our services and products include access services that offer dedicated,
dial-up, wireless and digital subscriber line or xDSL connections, Web hosting
services, intranets, virtual private networks or VPNs, electronic commerce or e-
commerce, voice-over-IP, e-mail and managed security services. We also provide
wholesale and private label network connectivity and related services to other
Internet service providers, known as ISPs, and telecommunications carriers to
further utilize our network capacity.
We operate one of the largest global commercial data communications
networks. Our Internet-optimized network has a footprint that extends around the
globe and is connected to approximately 525 sites, called points of presence or
POPs, situated throughout the U.S., Canada, Latin America, Europe and Asia that
enable our customers to connect to the Internet. Our network reach allows our
customers' employees to access their corporate network and systems resources
through local calls in over 150 countries. Our network architecture consists of
high capacity frame relay switches and routing and is compatible with all of the
most widely deployed transmission technologies. We further expand the reach of
our network by connecting with other large ISPs at 137 points through 67
contractual arrangements, called peering agreements, that permit the exchange of
information between our network and the networks of our peering partners. We
have recently opened three global Internet hosting facilities in the U.S.,
Switzerland and Canada containing a total of approximately 25,000 square feet
and are currently constructing additional data center capacity in London and New
York containing a total of approximately 61,000 square feet. We have two network
operating centers that monitor and manage network traffic 24-hours per day,
seven-days per week.
Our mission is to build a premier Internet protocol-based communications
company. We have grown by using multiple sales channels, including direct sales
and resellers, and by acquiring other ISPs and related businesses in key
markets. We have increased revenues by providing services and products that
enhance our customers' business processes by helping them to effectively use the
Internet and related tools. We served, as of March 31, 1999, approximately
59,700 business accounts, including 196 ISPs.
Pursuant to this prospectus, we may offer and issue, from time to time, up
to 6,862,000 shares of our common stock, par value $0.01 per share, in
connection with acquisitions of other businesses or assets.
--------------------
We are a New York corporation and our principal executive offices are
located at 510 Huntmar Park Drive, Herndon, Virginia 20170. Our telephone number
is (703) 904-4100.
Additional information concerning us is incorporated by reference in this
prospectus. See "Documents Incorporated by Reference" and "Where You Can Find
More Information."
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SPECIAL NOTE ABOUT FORWARD-LOOKING STATEMENTS
Some of the information contained in this prospectus may contain forward-
looking statements. Such statements can be identified by the use of forward-
looking terminology such as "believes," "expects," "may, "will," "should," or
"anticipates" or similar words, or by discussions of strategy that involve risks
and uncertainties. These statements may discuss our future expectations or
contain projections of our results of operations or financial condition or
expected benefits to us resulting from acquisitions or transactions. We cannot
assure that the future results indicated, whether expressed or implied, will be
achieved. The risk factors incorporated by reference into this prospectus or
contained in a prospectus supplement and other factors noted throughout this
prospectus, including risks and uncertainties, could cause our actual results to
differ materially from those contained in any forward-looking statement.
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<PAGE>
USE OF PROCEEDS
This prospectus relates to shares of common stock which may be offered by
PSINet from time to time in connection with acquisitions of other businesses or
assets. Other than the businesses or assets acquired, there will be no proceeds
to PSINet from these offers.
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
Our common stock has traded on The Nasdaq Stock Market's National Market
under the symbol "PSIX" since our initial public offering in May 1995. The
following table sets forth the high and low bid prices for our common stock for
the periods indicated as reported by the Nasdaq National Market. On May 25,
1999, the last reported sale price of our common stock on the Nasdaq National
Market was $43 7/8 per share.
Price Range of
Common Stock
-----------------------------
High Low
--------- ---------
Year Ended December 31, 1997:
First Quarter........................... $ 13 3/8 $ 6 3/4
Second Quarter.......................... 9 1/4 5 1/2
Third Quarter........................... 9 3/4 7 3/8
Fourth Quarter.......................... 9 1/2 4 1/4
Year Ended December 31, 1998:
First Quarter........................... $ 17 5/16 $ 4 15/16
Second Quarter.......................... 15 3/16 10
Third Quarter........................... 21 13/16 10 1/8
Fourth Quarter.......................... 24 15/16 8 3/8
Year Ending December 31, 1999:
First Quarter........................... $ 45 15/16 $ 21
Second Quarter (through May 25, 1999)... 73 41 3/8
As of May 24, 1999, there were 752 shareholders of record of our common
stock.
We have never declared or paid any cash dividends on our common stock. We
currently intend to retain all of our earnings, if any, for use in our business
and do not anticipate paying any cash dividends on our common stock in the
foreseeable future. In addition, under the terms of our existing credit
facilities, the payment of cash dividends is prohibited without the lender's
consent, and under the terms of our debt securities, the payment of cash
dividends is subject to limitations.
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<PAGE>
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 250,000,000 shares of common
stock, par value $.01 per share, and 30,000,000 shares of preferred stock, par
value $.01 per share.
The following summary of our capital stock and provisions of our
Certificate of Incorporation, Amended and Restated By-laws, and Shareholders
Rights Plan does not purport to be complete and is qualified in its entirety by
reference to the provisions of our Certificate of Incorporation, Amended and
Restated By-laws, and Shareholders Rights Plan. Copies of our Certificate of
Incorporation, Amended and Restated By-laws, and Shareholders Rights Plan have
been filed with the Securities and Commission. See "Where You Can Find More
Information."
Common Stock
At May 24, 1999, approximately 64,592,773 shares of common stock were
outstanding. In addition, a total of approximately 11,336,981 shares of common
stock were reserved for issuance in connection with outstanding stock options,
50,000 shares were reserved for issuance in connection with outstanding warrants
to purchase common stock and a total of 4,201,050 additional shares were
reserved for issuance under our Executive Stock Option Plan, Executive Stock
Incentive Plan, Director's Stock Incentive Plan and Strategic Stock Incentive
Plan.
Holders of our common stock are entitled to one vote for each share held of
record on all matters submitted to a vote of the shareholders. Holders of our
common stock are not entitled to cumulative voting rights with respect to the
election of directors and, as a consequence, minority shareholders will not be
able to elect directors on the basis of their votes alone. Subject to
preferences that may be applicable to any shares of preferred stock issued in
the future, holders of common stock are entitled to receive ratably such
dividends as may be declared from time to time by our Board of Directors out of
funds legally available for payment. In the event of a liquidation, dissolution
or winding up of PSINet, holders of our common stock are entitled to share
ratably in all of our assets remaining after payment of liabilities and the
liquidation preference of any then outstanding preferred stock. Holders of
common stock have no preemptive rights and no right to convert their common
stock into any other securities. There are no redemption or sinking fund
provisions applicable to our common stock. All shares of our common stock to be
outstanding upon completion of this offering will by fully paid and non-
assessable, subject to Section 630 of the New York Business Corporation Law.
Under Section 630 of the New York Business Corporation Law, the ten largest
shareholders of PSINet may become personally liable for unpaid wages and debts
to our employees if our capital stock ceases to be listed on a national or an
affiliated securities association.
Our common stock is traded on The Nasdaq Stock Market under the symbol
"PSIX."
Preferred Stock
Our Board of Directors has the authority to issue up to 30,000,000 shares
of our preferred stock in one or more series and to fix the rights, preferences,
privileges and restrictions of such series, including dividend rights,
conversion rights, voting rights, terms of redemption, liquidation preferences,
sinking fund terms and the number of shares constituting any series or the
designation of such series, without any further vote or action by shareholders.
As of the date of this prospectus, 1,000,000 shares of our preferred stock were
designated as Series A Junior Participating Preferred Stock, $.01 per value per
share, in connection with our Shareholder Rights Plan, no shares of which have
been issued and 9,200,000 shares of our preferred stock were designated as 6
3/4% Series C cumulative convertible preferred stock, all of which are issued
and outstanding. Our Board of Directors may designate and authorize the issuance
of new series of our preferred stock with voting and other rights that could
adversely affect the voting power of holders of our common stock and the
likelihood that such holders will receive dividend payments and payments upon
our liquidation and could have the effect of delaying, deferring or preventing a
change in control of PSINet.
In November 1997, we issued 600,000 shares of our Series B 8% convertible
preferred stock in a private placement for approximately $30.0 million. During
the first quarter of 1999, all outstanding shares of the Series B
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<PAGE>
preferred stock, which accrued dividends at an annual rate of 8%, were converted
into an aggregate of 3,000,000 shares of our common stock. As a result of this
conversion, we are no longer required to pay the 8% annual dividends under the
terms of the Series B preferred stock. Effective upon this conversion, the
formerly outstanding shares of Series B preferred stock have resumed the status
of authorized and unissued shares of our preferred stock undesignated as to
series, and are available for future issuance as described in the immediately
preceding paragraph.
Our 6 3/4% Series C cumulative convertible preferred was issued in May
1999. Simultaneously with the issuance of the Series C preferred stock, the
purchasers of the convertible preferred stock deposited funds into an account
called the Deposit Account, from which quarterly cash payments of $0.84375 per
share will be made or which may be used to purchase shares of common stock from
us at 95% of the then current market price of our common stock for delivery to
holders of the Series C preferred stock in lieu of cash payments. The funds
placed in the Deposit Account by the purchasers of the Series C preferred stock
will, together with the earnings on those funds, be sufficient to make payments,
in cash or stock, through May 15, 2002. After such date, dividends will begin to
accrue on the Series C preferred stock, although they may begin to accrue at an
earlier time if the Deposit Account is terminated. On and after August 15, 2002
(or earlier, if the Deposit Account is terminated), holders of the Series C
preferred stock will be entitled to quarterly dividends when, as and if declared
by our Board of Directors, which will be payable in cash or, at our option,
shares of our common stock at 95% of the then current market price of our
common stock, or a combination thereof (subject to applicable law).
Each share of the Series C preferred stock will be convertible at any time
at the option of the holders into 0.8017 share of our common stock, equal to an
initial conversion price of $62.3675 per share, subject to adjustment. The
shares of Series C preferred stock will be entitled to a liquidation preference
equal to $50 per share.
We may redeem the Series C preferred stock at a redemption premium of
101.929% of the liquidation preference (plus accumulated and unpaid dividends,
if any) on or after November 15, 2000 but prior to May 15, 2002, if the trading
price for the Series C preferred stock equals or exceeds $124.74 per share for a
specified trading period. Additional payments will also be made from the
Deposit Account or by us to the holders of the Series C preferred stock if we
redeem Series C preferred stock under the foregoing circumstances. Except in
the foregoing circumstances, we may not redeem the Series C preferred stock
prior to May 15, 2002. Beginning on May 15, 2002, we may redeem shares of
convertible preferred stock at an initial redemption premium of 103.857% of the
liquidation preference, declining to 100.00% on May 15, 2006 and thereafter,
plus in each case all accumulated and unpaid dividends to the redemption date.
We may effect any redemption, in whole or in part, at our option, in cash by
delivery of fully paid and nonassessable shares of our common stock or a
combination thereof (subject to applicable law), by delivering notice to the
holders of the Series C preferred stock.
Holders of Series C preferred stock will have no voting rights except (1)
as required by law, (2) if dividends payable on the Series C preferred stock are
in arrears for six quarterly periods, the holders of Series C preferred stock
voting separately as a class with shares of any other preferred stock or
preference securities having similar voting rights will be entitled to elect two
directors to our Board of Directors, and (3) the affirmative vote or consent of
the holders of at least 66 2/3% of the outstanding Series C preferred stock will
be required to permit us to issue any class of series of stock, or security
convertible into stock or evidencing a right to purchase any shares of any class
or series of stock ranking senior to the Series C preferred stock as to
dividends, liquidation rights or voting rights, and for amendments to our
charter that would adversely affect the rights of holders of Series C preferred
stock.
In the event of a change of control of PSINet (as defined in the charter
amendment designating the convertible preferred stock), holders of Series C
preferred stock will, if the market value of our common stock at such time is
less than the conversion price for the Series C preferred stock, have a one time
option to convert all of their outstanding shares of Series C preferred stock
into shares of our common stock at an adjusted conversion price equal to the
greater of (1) the market value of our common stock as of the date of the change
in control and (2) $38.73. In lieu of issuing shares of common stock issuable
upon conversion in the event of a change of control, we may, at our option, make
a cash payment equal to the market value of the common stock otherwise issuable.
Registration Rights
In connection with our acquisitions of InterCon Systems Corporation in June
1995 and Software Ventures Corporation in July 1995, we granted registration
rights with respect to an aggregate of approximately 1,683,819
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<PAGE>
shares of our common stock and options to purchase 543,347 shares of our common
stock issued to former InterCon and Software Ventures shareholders. All such
shares of common stock and other securities are called the "registrable shares".
Pursuant to registration rights agreements between us and the former
shareholders of InterCon and Software Ventures, respectively, the original
holders of registrable shares or their permitted transferees are entitled to
registration rights with respect to their registrable shares. If, prior to May
8, 2000, we propose to register any of our securities under the Securities Act
of 1933, the holders of registrable shares will be entitled to notice thereof
and, subject to restrictions, to include their registrable shares in such
registration. Furthermore, one or more holders of registrable shares may require
us on up to five occasions prior to September 30, 2006 to register their shares
on Form S-3, subject to specified conditions and limitations and provided that
such holders are not permitted to require such registration more frequently than
once every six months. The former InterCon shareholders are entitled to three
demand registrations and one Form S-3 registration; and some of the former
Software Ventures shareholders are entitled to a single demand registration and
a single Form S-3 registration, subject to specified conditions and limitations
and provided that any demand must be at an aggregate offering price to the
public of at least $1.0 million and no demand may be made within six months of a
prior demand. The right of holders of registrable shares to include their shares
in an underwritten registration is subject to the right of the underwriters to
limit the number of shares included in the offering. Subject to limitations, we
are required to bear all registration, legal (for no more than one independent
legal counsel for all selling holders of registrable shares) and other expenses
in connection with these registrations, other than underwriting discounts and
commissions, and must provide appropriate indemnification. These registration
rights rank ratably.
In connection with the private placement of our Series B preferred stock,
we granted registration rights to the holders of our Series B preferred stock
with respect to 600,000 shares of Series B preferred stock, which were recently
converted into an aggregate of 3,000,000 shares of our common stock. These
registration rights rank ratably with and are substantially similar to those
described in the immediately preceding paragraph, except that we were required
to file a registration statement on Form S-3 with respect to the shares of
common stock issuable upon conversion of the Series B Preferred Stock pursuant
to demand registration rights exercised by the holders of the Series B Preferred
Stock, which registration statement was declared effective by the Securities and
Exchange Commission on April 24, 1998, and at any time prior to November 17,
2000 when that registration statement is not effective, the former holders of
Series B Preferred Stock may be entitled to notice and piggyback registration
rights, which are not subject to an underwriter's cutback.
In connection with the transactions contemplated by the IRU Purchase
Agreement between us and IXC, we granted registration rights to IXC with respect
to 10,165,779 shares of our common stock issued to IXC. These registration
rights rank ratably with and are substantially similar to those described in the
immediately preceding two paragraphs except that IXC is entitled to notice and
piggyback registration rights at any time, IXC may make up to three separate
demands to have us file a registration statement under the Securities Act of
1933 with respect to an underwritten public offering, and IXC is entitled to one
demand registration on Form S-3 every six months.
New York Anti-Takeover Law, Certain Charter and By-law Provisions and Other
Anti-takeover Considerations
As a New York corporation, we are subject to the provisions of Section 912
of the New York Business Corporation Law and will continue to be so subject if
and for so long as we have a class of securities registered under Section 12 of
the Securities Exchange Act of 1934, at least 25% of our total employees are
employed primarily within New York or at least 250 employees are so employed and
at least 10% of our voting stock is owned beneficially by residents of the State
of New York. Section 912 provides, with certain exceptions, which include,
among others, transactions with shareholders who became interested prior to the
effective date of an amendment to the New York corporation's certificate of
incorporation providing that the corporation would be subject to Section 912 if
such corporation did not then have a class of stock registered pursuant to
Section 12 of the Exchange Act, that a New York corporation may not engage in a
"business combination" (e.g., merger, consolidation, recapitalization or
disposition of stock) with any "interested shareholder" for a period of five
years from the date that such person first became an interested shareholder
unless:
(1) the transaction resulting in a person becoming an interested
shareholder, or the business combination, was approved by the board of
directors of the corporation prior to that person becoming an interested
shareholder;
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<PAGE>
(2) the business combination is approved by the holders of a majority
of the outstanding voting stock not beneficially owned by such interested
shareholder; or
(3) the business combination meets certain valuation requirements for
the stock of the New York corporation.
An "interested shareholder" is defined as any person that:
(a) is the beneficial owner of 20% or more of the outstanding voting stock
of a New York corporation; or
(b) is an affiliate or associate of the corporation that at any time
during the prior five years was the beneficial owner, directly or
indirectly, of 20% or more of the then outstanding voting stock.
These provisions are likely to impose greater restrictions on an unaffiliated
shareholder than on the existing shareholders who will continue to own a
majority of our outstanding common stock after this offering.
Our Certificate of Incorporation and Amended and Restated By-laws contain
provisions intended to enhance the likelihood of continuity and stability in the
composition of our Board of Directors and of the policies formulated by the
Board which may discourage a future unsolicited takeover of PSINet. These
provisions could have the effect of discouraging some attempts to acquire PSINet
or remove incumbent management, including incumbent members of our Board of
Directors, even if some or a majority of our shareholders deemed such an attempt
to be in their best interests.
Our Certificate of Incorporation or Amended and Restated By-laws, as
applicable, among other things:
(1) provide that the number of directors will be not fewer than three
nor more than nine, with the exact number of directors to be determined
from time to time by resolution adopted by a majority of our Board of
Directors;
(2) provide for a classified Board of Directors consisting of two
classes of directors having staggered terms of two years each, with each of
the classes required to consist of at least three directors;
(3) subject to any rights of holders of our preferred stock which may
be granted by our Board of Directors in the future and except as otherwise
provided by Section 706(d) of the New York Business Corporation Law,
provide that directors may be removed only for cause;
(4) subject to any rights of holders of our preferred stock which may
be granted by our Board of Directors in the future, permit vacancies on the
Board of Directors that may occur between annual meetings and any newly
created seats to be filled only by the Board of Directors and not by the
shareholders;
(5) limit the right of shareholders to call special meetings of
shareholders;
(6) prohibit shareholders from proposing amendments to our
Certificate of Incorporation;
(7) require any shareholder who wished to bring any proposal before a
meeting of our shareholders or to nominate a person to serve as a director
to give written notice thereof and certain related information at least 60
days prior to the date one year from the date of our immediately preceding
annual meeting, if such proposal or nomination is to be submitted at an
annual meeting, and within ten days of the giving of notice to our
shareholders, if such proposal or nomination is to be submitted at a
special meeting;
(8) require the affirmative vote of at least two-thirds of our
capital stock entitled to vote to amend certain provisions of our
Certificate of Incorporation and to amend our Amended and Restated By-laws;
and
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(9) provide that our Board of Directors, without action by our
shareholders, may issue and fix the rights and preferences of shares of our
preferred stock.
These provisions may have the effect of delaying, deferring or preventing a
change of control of PSINet without further action by our shareholders, may
discourage bids for our common stock at a premium over the market price of our
common stock and may adversely affect the market price of, and the voting and
other rights of the holders of, common stock.
Shareholder Rights Plan
Each outstanding share of our common stock has attached to it a preferred
stock purchase right (a "right"). The rights also attach to most future
issuances of common stock. Subject to exceptions, each right will entitle the
registered holder to buy one one-thousandth of a share of our Series A preferred
stock at an exercise price of $75 per right.
Subject to exceptions, the right will become exercisable upon the
occurrence of the earlier of:
. an announcement that a person or group of affiliated or associated
persons (each, an "acquiring person") has acquired beneficial
ownership of 20.50% or more of our outstanding common stock (other
than persons who acquire ownership pursuant to a tender offer or
exchange offer which is for all outstanding shares of our common
stock, or persons who acquire ownership directly from us, William L.
Schrader, our Chairman and Chief Executive Officer, or his or our
affiliates so long as such persons beneficially own less than 50% of
our outstanding common stock); or
. an announcement or commencement of an intention to make a tender
offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 20.50% or more of the
outstanding shares of our common stock (the earlier of such dates
being called the "distribution date").
In such event, each holder of a right, other than rights beneficially owned by
the acquiring person, will thereafter have the right, subject to exceptions, to
receive upon exercise thereof a number of shares (or portions of shares) of
Series A preferred stock or, at the discretion of our Board of Directors, a
number of additional shares of common stock as set forth in the Rights Plan.
The acquisition of shares of our common stock by IXC or its controlled
affiliates pursuant to the IRU purchase agreement between IXC and us, however,
will not render it an acquiring person. In addition, Ralph J. Swett, the former
Chairman of IXC, will not become an acquiring person solely by reason of the
issuance or exercise of options, if any, granted to him in his capacity as a
director of PSINet.
All rights expire on June 5, 2006, unless the rights are earlier redeemed
or exchanged by us or expire earlier upon the consummation of certain
transactions. Shares of our Series A preferred stock purchasable upon exercise
of the rights will not be redeemable. Each share of Series A preferred stock
will be entitled, when, as and if declared, to an aggregate dividend of 1,000
times the dividend declared per share of our common stock. No dividend may be
declared on the common stock without the concurrent declaration of a dividend on
the Series A preferred stock. In the event of liquidation, holders of the
Series A preferred stock will be entitled to a minimum preferential liquidation
payment of $1,000 per share, plus any accrued but unpaid dividends, but will be
entitled to an aggregate payment of 1,000 times the payment made per share of
common stock; thereafter, holders of the Series A preferred stock and the
holders of common stock will share pari passu per share in any of our remaining
assets. Each share of our Series A preferred stock will have 1,000 votes,
voting together with our common stock. Finally, in the event of any merger,
consolidation or other transaction in which shares of common stock are converted
or exchanged, each share of Series A preferred stock will be entitled to receive
1,000 times the amount received per share of common stock.
In the event that any person or group of affiliated or associated persons
becomes an acquiring person, each holder of a right, other than rights
beneficially owned by the acquiring person which will thereupon become void,
will thereafter have the right (the "flip-in right") to receive, upon exercise
of a right at the then current exercise price of the right, that number of one
one-thousandths of a share of Series A preferred stock or, in the discretion of
our
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Board of Directors, that number of shares of common stock or, in certain
circumstances, other of our securities, having a market value of two times the
exercise price of the right. The flip-in right provisions do not apply to a
merger or other business combination with a person who has acquired shares of
our common stock pursuant to certain transactions approved by our Board of
Directors (each, a "permitted offer").
In the event that, after a person or group has become an acquiring person,
we are acquired in a merger or other business combination transaction or 50% or
more of our consolidated assets or earning power are sold or transferred, except
pursuant to a permitted offer, proper provision will be made so that each holder
of a right, other than rights beneficially owned by an acquiring person which
will have become void, will thereafter have the right (the "flip-over right") to
receive, upon the exercise thereof at the then current exercise price of the
right, that number of shares of common stock of the person with which we have
engaged in the foregoing transaction (or its parent), which number of shares at
the time of such transaction will have a market value of two times the exercise
price of the right. The holder of a right will continue to have the flip-over
right whether or not such holder exercises or surrenders the flip-in right.
At any time prior to the earlier to occur of a person becoming an acquiring
person or the expiration of the rights, and under other specified circumstances,
we may redeem the rights at a redemption price of $.01 per right. We may, at
our option, pay the redemption price in shares of our common stock. After the
date that a person becomes an acquiring person, we may redeem the then
outstanding rights, at the redemption price, provided that such redemption is in
connection with a merger or other business combination transaction or series of
transactions involving us in which all holders of shares of common stock are
treated alike.
The rights have anti-takeover effects. The rights will cause substantial
dilution to a person or group that attempts to acquire us without conditioning
the offer on the rights being redeemed, a substantial number of rights being
acquired, or the offer being deemed a permitted offer under the Rights Plan.
However, the rights should not interfere with any merger or other business
combination in connection with a permitted offer or that is approved by us
because the rights are redeemable under specified circumstances.
Transfer Agent and Registrar
First Chicago Trust Company of New York is the transfer agent and registrar
for our common stock and our Series C preferred stock. Its telephone number for
such purposes is (201) 222-4099.
DESCRIPTION OF INDEBTEDNESS
The following summaries of our existing indebtedness do not purport to be
complete and are qualified in their entirety by reference to the provisions of
the various agreements and indentures related thereto, copies of which have been
filed with the Securities and Exchange Commission and to which reference is
hereby made. See "Where You Can Find More Information."
Credit Facility
In September 1998, we entered into a new three-year senior secured
revolving credit facility, pursuant to which The Chase Manhattan Bank ("Chase")
is acting as administrative agent, to replace our existing bank credit
arrangements in the United States. The credit facility is a secured revolving
credit facility with borrowing availability thereunder in the maximum principal
amount of $110 million.
Interest. Borrowings under the credit facility bear interest at our
option, at:
(a) the London interbank offered rate for deposits in U.S. Dollars for the
relevant period multiplied by the statutory reserve rate plus the
Applicable Margin ("Eurodollar Rate"), or
(b) the higher of Chase's prime rate or the Federal Funds effective rate
plus 1/2 of 1%, plus the Applicable Margin ("ABR Rate"). The Applicable
Margin varies based on the Leverage Ratio, as defined in the credit
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facility, as of the most recent determination date. Currently, the
Applicable Margin is 1.75% for ABR Rate borrowings and 2.75% for Eurodollar
Rate borrowings.
Guarantees and Security. Our obligations under the credit facility are
guaranteed by each existing and subsequently acquired or organized domestic
subsidiary of ours which owns or maintains at least $1,000,000 in assets or
generates at least $1,000,000 in annual revenues, and are secured by a lien on
substantially all of our assets and the assets of each of our subsidiary
guarantors and by a pledge by us and each of our subsidiary guarantors of all
capital stock and other equity interests owned by us and such subsidiary
guarantors (65% in the case of equity interests in foreign subsidiaries).
Covenants. The credit facility contains covenants and provisions that
restrict, among other things, our and our subsidiaries' ability to:
(1) make dividends and distributions on, and redemptions and
repurchases of, capital stock and other similar payments;
(2) make prepayments, redemptions and repurchases of indebtedness;
(3) incur liens and enter into sale-leaseback transactions;
(4) make certain loans and investments;
(5) incur additional indebtedness and certain contingent obligations;
(6) effect certain mergers, acquisitions and asset sales;
(7) engage in certain transactions with affiliates;
(8) effect certain changes in business conducted by us; and
(9) amend and waive certain debt and other agreements.
The credit facility also requires the satisfaction of certain financial
covenants, including a minimum annual consolidated revenue test, a minimum debt-
to-annualized adjusted revenue ratio, a minimum aggregate balance of
nonrestricted cash and available borrowings and a minimum EBITDA test. In
addition, the credit facility requires a reduction in the maximum amount of
availability and prepayments, if required as a result of such reduction, equal
to the net proceeds received from certain asset sales aggregating more than $5
million and from certain casualty events.
Events of Default. Events of default under the credit facility include
various events of default customary for such type of agreement, such as failure
to pay scheduled payments when due, cross defaults with and cross acceleration
to other indebtedness, including the 10% senior notes and the 11 1/2% senior
notes, the occurrence of a change in control (as defined in the credit facility)
and certain events of bankruptcy, insolvency and reorganization.
10% Senior Notes
We have outstanding $600.0 million aggregate principal amount of our 10%
Senior Notes due 2005. The 10% senior notes are senior unsecured obligations
ranking equivalent in right of payment to all our existing and future unsecured
and unsubordinated indebtedness and senior in right of payment to all our
existing and future subordinated indebtedness. The 10% senior notes were issued
under an Indenture dated as of April 13, 1998 between us and Wilmington Trust
Company, as trustee.
The 10% senior notes will mature on February 15, 2005. Interest on the 10%
senior notes is payable semi-annually on August 15 and February 15 of each year,
commencing August 15, 1998. At March 31, 1999, we had deposited in an escrow
account restricted cash and short-term investments of $93.8 million to fund,
when due, the next three semi-annual interest payments on the 10% senior notes.
The 10% senior notes are redeemable at our
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option, in whole or in part, at any time on or after February 15 of 2002, 2003
and 2004 at 105%, 102.5% and 100% of the principal amount thereof, respectively,
in each case, plus accrued and unpaid interest to the date of redemption. In
addition, on or prior to February 15, 2001, we may redeem up to 35% of the
original aggregate principal amount of the 10% senior notes at a redemption
price of 110% of the principal amount thereof, plus accrued and unpaid interest
to the date of redemption, with the net cash proceeds of certain public equity
offerings or the sale of stock to one or more strategic investors, provided that
at least 65% of the original aggregate principal amount of the 10% senior notes
remains outstanding immediately after such redemption. Upon the occurrence of a
"change of control" (as defined in the 10% senior notes indenture), we will be
required to make an offer to purchase all of the 10% senior notes at a purchase
price equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase. We may not have sufficient funds or
the financial resources necessary to satisfy our obligations to repurchase the
10% senior notes upon a change of control. Our credit facility prohibits us from
repurchasing any 10% senior notes upon a change of control unless we have paid
all amounts outstanding under the credit facility prior thereto.
The 10% senior notes indenture contains certain financial covenants with
which we must comply relating to, among other things, the following matters:
(1) limitation on our payment of cash dividends, repurchase of capital
stock, payment of principal on subordinated indebtedness and making of
certain investments, unless after giving effect to each such payment,
repurchase or investment, certain operating cash flow coverage tests are
met, excluding certain permitted payments and investments;
(2) limitation on our and our subsidiaries' incurrence of additional
indebtedness, unless at the time of such incurrence, our ratio of debt to
annualized operating cash flow would be less than or equal to 6.0 to 1.0
prior to April 1, 2001 and less than or equal to 5.5 to 1.0 on or after
April 1, 2001, excluding certain permitted incurrences of debt;
(3) limitation on our and our subsidiaries' incurrence of liens, unless
the 10% senior notes are secured equally and ratably with the obligation or
liability secured by such lien, excluding certain permitted liens;
(4) limitation on the ability of any of our subsidiaries to create or
otherwise cause to exist any encumbrance or restriction on the payment of
dividends or other distributions on its capital stock, payment of
indebtedness owed to us or any of our other subsidiaries, making of
investments in us or any other of our subsidiaries, or transfer of any
properties or assets to us or any of our other subsidiaries, excluding
permitted encumbrances and restrictions;
(5) limitation on certain mergers, consolidations and sales of assets by
us or our subsidiaries;
(6) limitation on certain transactions with our affiliates;
(7) limitation on the ability of any or our subsidiaries to guarantee or
otherwise become liable with respect to any of our indebtedness unless such
subsidiary provides for a guarantee of the 10% senior notes on the same
terms as the guarantee of such indebtedness;
(8) limitation on certain sale and leaseback transactions by us or our
subsidiaries;
(9) limitation on certain issuances and sales of capital stock of our
subsidiaries; and
(10) limitation on the ability of us or our subsidiaries to engage in
any business not substantially related to a telecommunications business.
The events of default under the 10% senior notes indenture include various
events of default customary for such type of agreement, including, among others,
the failure to pay principal and interest when due on the 10% senior notes,
cross-defaults on other indebtedness for borrowed monies in excess of $10
million, which indebtedness
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would therefore include indebtedness outstanding under the credit facility,
certain judgments or orders for payment of money in excess of $10 million, and
certain events of bankruptcy, insolvency and reorganization.
11 1/2% Senior Notes
We have outstanding $350.0 million aggregate principal amount of our
11 1/2% senior notes due 2008. The 11 1/2% senior notes are our senior unsecured
obligations ranking equivalent in right of payment to all our existing and
future unsecured and unsubordinated indebtedness and senior in right of payment
to all our existing and future subordinated indebtedness. The 11 1/2% senior
notes were issued under an Indenture dated as of November 3, 1998, as amended,
between us and Wilmington Trust Company, as Trustee.
The 11 1/2% senior notes will mature on November 1, 2008. Interest on the
11 1/2% senior notes is payable semi-annually on May 1 and November 1 of each
year, commencing May 1, 1999. The 11 1/2% senior notes are redeemable at our
option, in whole or in part, at any time on or after November 1 of 2003, 2004,
2005 and 2006 at 105.70%, 103.833%, 101.917% and 100% of the principal amount
thereof, respectively, in each case, plus accrued and unpaid interest to the
date of redemption. In addition, on or prior to November 1, 2001, we may redeem
up to 35% of the original aggregate principal amount of the 11 1/2% senior notes
at a redemption price of 111.5% of the principal amount thereof, plus accrued
and unpaid interest to the date of redemption, with the net cash proceeds of
certain public equity offerings or the sale of stock to one or more strategic
investors, provided that at least 65% of the original aggregate principal amount
of the 11 1/2% senior notes remains outstanding immediately after such
redemption. Upon the occurrence of a change of control (as defined in the
11 1/2% senior notes indenture), we will be required to make an offer to
purchase all of the 11 1/2% senior notes at a purchase price equal to 101% of
the principal amount thereof, plus accrued and unpaid interest, if any, to the
date of repurchase. We may not have sufficient funds or the financial resources
necessary to satisfy our obligations to repurchase the 11 1/2% senior notes upon
a change of control. Our credit facility prohibits us from repurchasing any
11 1/2% senior notes upon a change of control unless we have paid all amounts
outstanding under the credit facility prior thereto.
The 11 1/2% senior notes indenture contains certain financial covenants
with which we must comply, which are substantially identical to those contained
in the indenture governing our 10% senior notes described above under "--10%
Senior Notes."
The events of default under the 11 1/2% senior notes indenture are
substantially identical to those contained in the indenture governing our 10%
senior notes described above under "--10% Senior Notes."
OFFERED SECURITIES
We propose to issue and sell the shares of common stock offered hereby in
connection with acquisitions of other businesses or assets. We anticipate that
any acquisitions will consist principally of acquisitions of Internet and
telecommunications-related businesses and assets (including providers of voice,
video and data transmission products, services, and systems) or other businesses
and assets that have strategic value to our existing businesses. The shares of
common stock shall be offered on terms to be determined at the time of sale.
Such shares of common stock may be issued in exchange for shares of capital
stock, partnership interests or other assets representing an interest, direct or
indirect, in other entities, in exchange for assets used in or related to the
business of such entities or otherwise pursuant to agreements providing for such
acquisitions. The consideration for such acquisitions may consist of shares of
common stock, cash, assumption of liabilities or a combination thereof. The
terms of such acquisitions and of the issuance of any such shares of common
stock in connection therewith will generally be determined by direct
negotiations with the owners or officers of the business or assets to be
acquired or, in the case of entities which are more widely held, through
exchange offers to stockholders or documents soliciting the approval of
statutory mergers, consolidations or sales of assets. Underwriting discounts or
commissions will generally not be paid by us. However, under certain
circumstances, we may issue shares of common stock covered by this prospectus to
pay brokers' commissions incurred in connection with acquisitions. For a
description of our common stock, see "Description of Capital Stock."
This prospectus, as amended or supplemented if appropriate, has also been
prepared for use by persons who receive shares of our common stock in
acquisitions, including shares sold hereunder ("selling stockholders");
provided, however, that no selling stockholder is authorized to use this
prospectus to reoffer any such shares without
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first obtaining our prior written consent. Resales may be made in the manner
described in this prospectus, as amended or supplemented, in the manner
permitted by Rule 145(d) under the Securities Act or under an exemption from the
Securities Act of 1933. Profits realized on resales by selling stockholders
under certain circumstances may be regarded as underwriting compensation under
the Securities Act of 1933.
Resales by selling stockholders may be made directly to investors or
through a securities firm acting as an underwriter, broker or dealer. When
resales are to be made through a securities firm, such securities firm may be
engaged to act as the selling stockholder's agent in the sale of the shares by
such selling stockholder, or the securities firm may purchase shares from the
selling stockholders as principal and thereafter resell such shares from time to
time. The fees earned by or paid to such securities firm may be the normal stock
exchange commission or negotiated commissions or underwriting discounts to the
extent permissible. In addition, such securities firm may effect resales through
other securities dealers, and customary commissions or concessions to such other
dealers may be allowed. Sales of shares may be at negotiated prices, at fixed
prices, at market prices or at prices related to market prices then prevailing.
Any such sales may be made on The Nasdaq Stock Market's National Market or other
exchange on which such shares are traded, in the over-the-counter market, by
block trade, in special or other offerings, directly to investors or through a
securities firm acting as agent or principal, or a combination of such methods.
Any participating securities firm may be indemnified against certain
liabilities, including liabilities under the Securities Act of 1933. Any
participating securities firm may be deemed to be an underwriter within the
meaning of the Securities Act of 1933, and any commission earned by such firm
may be deemed to be underwriting discounts or commissions under the Securities
Act of 1933.
In connection with resales of the shares sold hereunder, a prospectus
supplement, if required, will be filed under Rule 424(b) under the Securities
Act of 1933, disclosing the name of the selling stockholder, the participating
securities firm, if any, the number of shares involved and other details of such
resale to the extent appropriate.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon by Nixon,
Hargrave, Devans & Doyle LLP, New York, New York, counsel for PSINet. Certain
attorneys with Nixon, Hargrave, Devans & Doyle LLP currently own in the
aggregate less than one percent of our common stock.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to our annual report on Form 10-K for the year ended December 31, 1998
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important business and financial
information about us to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus,
and information that we file later with the SEC will automatically update and
supersede this information. We are incorporating by reference in this
prospectus the following documents:
1. Our annual report on Form 10-K for our fiscal year ended December 31,
1998. This report contains:
. audited consolidated balance sheets for us and our subsidiaries as of
December 31, 1998 and 1997
. related consolidated statements of operations, of changes in
shareholders' equity and of cash flows for the years ended December
31, 1998, 1997 and 1996
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2. Our quarterly report on Form 10-Q for the three month period ended March
31, 1999
3. Our current reports on Form 8-K dated
. April 27, 1999
. May 7, 1999
. July 31, 1997 (solely insofar as it relates to our Shareholder Rights
Agreement dated May 8, 1996, as amended)
. August 20, 1997
4. Our registration statement on Form 8-A dated April 7, 1995, as amended
(registration no. 0-25812)
5. Our registration statement on Form 8-A dated June 4, 1996, as amended
(registration no. 0-25812)
6. Our registration statement on Form 8-A dated April 27, 1999, as amended
(registration no. 0-25812).
We are also incorporating by reference in this prospectus all reports and
other documents that we file after the date of this prospectus pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior
to the termination of the offering of securities under this prospectus. These
reports and documents will be incorporated by reference in and considered to be
a part of this prospectus as of the date of filing of such reports and
documents.
Any statement contained in this prospectus or in a document which is
incorporated by reference herein will be modified or superseded for purposes of
this prospectus to the extent that a statement in any document that we file
after the date of this prospectus that also is incorporated by reference herein
modifies or supersedes such prior statement. Any such statement so modified or
superseded will not, except as so modified or superseded, constitute a part of
this prospectus.
This prospectus incorporates by reference documents which are not presented
in this prospectus or delivered to you with it. You may request, and we will
send to you, without charge, copies of these documents, other than exhibits to
these documents, which we will send to you for a reasonable fee. Requests
should be directed to the Office of the Secretary, PSINet Inc., 510 Huntmar Park
Drive, Herndon, Virginia 20170 (telephone (703) 904-4100). To obtain timely
delivery, you must request the information no later than five business days
before you make an investment decision about us.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-4 that we
filed with the SEC using a "shelf" registration process under the Securities Act
of 1933. Under the shelf process, we may, from time to time, issue common stock
in one or more offerings up to a total dollar amount of $300 million in
connection with acquisitions of other businesses or assets.
This prospectus and the accompanying prospectus supplement do not contain
all of the information included in the registration statement. We have omitted
parts of the registration statement as permitted by the rules and regulations of
the SEC. For further information, we refer you to the registration statement on
Form S-4, including its exhibits. Statements contained in this prospectus and
any accompanying prospectus supplement about the provisions or contents of any
agreement or other document are not necessarily complete. If SEC rules and
regulations require that any agreement or document be filed as an exhibit to the
registration statement, you should refer to that agreement or document for a
complete description of these matters. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as of
any date other than the date on the front of each document.
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This prospectus provides you with a general description of the offered
securities. Each time we sell offered securities, we will provide a prospectus
supplement that will contain specific information about the term of that
offering. The prospectus supplement may also add, update or change any
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with the additional information described
under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy materials that we have file
with the SEC, including the registration statement, at the following SEC public
reference rooms:
<TABLE>
<S> <C> <C>
Judiciary Plaza 7 World Trade Center Northwest Atrium Center
450 Fifth Street, N.W. Suite 1300 500 West Madison Street
Room 1024 New York, New York 10048 Suite 1400
Washington, DC 20549 Chicago, Illinois 60661
</TABLE>
You can also obtain copies of filed documents, at prescribed rates, by mail
from the Public Reference Section of the SEC at its Judiciary Plaza location,
listed above, or by telephone at 1-800-SEC-0330 or electronically through the
SEC's Web Site at http://www.sec.gov.
Our common stock is listed on the Nasdaq National Market under the symbol
"PSIX," and our SEC filings can also be read and obtained at the following
Nasdaq address:
The Nasdaq Stock Market
Reports Section
1735 K Street, N.W.
Washington, D.C. 20006
We furnish our stockholders with annual reports containing our audited
financial statements and with proxy material for our annual meetings complying
with the proxy requirements of the Securities Exchange Act of 1934.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Under Sections 721 through 725 of the Business Corporation Law of the State
of New York (the "BCL"), the Registrant has broad powers to indemnify its
directors, officers and other employees. These sections (1) provide that the
statutory indemnification and advancement of expenses provision of the BCL are
not exclusive, provided that no indemnification may be made to or on behalf of
any director or officer if a judgment or other final adjudication adverse to the
director or officer establishes that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the
cause of action as adjudicated, or that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled, (2) establish
procedures for indemnification and advancement of expenses that may be contained
in the certificate of incorporation or by-laws, or, when authorized by either of
the foregoing, set forth in a resolution of the shareholders or directors of an
agreement providing for indemnification and advancement of expenses, (3) apply
a single standard for statutory indemnification for third-party and derivative
suits by providing that indemnification is available if the director or officer
acted in good faith, for a purpose which he reasonably believed to be in the
best interests of the corporation, and, in criminal actions, had no reasonable
cause to believe that his conduct was unlawful and (4) permit the advancement
of litigation expenses upon receipt of an undertaking to repay such advance if
the director or officer is ultimately determined not to be entitled to
indemnification or to the extent the expenses advanced exceed the
indemnification to which the director or officer is entitled. Section 726 of
the BCL permits the purchase of insurance to indemnify a corporation or its
officers and directors to the extent permitted.
As permitted by Section 721 of the BCL, the Registrant's By-laws provide
that the Registrant shall indemnify its officers and directors, as such, to the
fullest extent permitted by applicable law, and that expenses reasonably
incurred by any such officer or director in connection with a threatened or
actual action or proceeding shall be advanced or promptly reimbursed by the
Registrant in advance of the final disposition of such action or proceeding upon
receipt of an undertaking by or on behalf of such officer or director to repay
such amount if and to the extent that it is ultimately determined that such
officer or director is not entitled to indemnification.
Article EIGHTH of the Registrant's Certificate of Incorporation provides
that no director of the Registrant shall be held personally liable to the
Registrant or its shareholders for damages for any breach of duty in his
capacity as a director occurring after authorization of such Article EIGHTH by
the shareholders unless a judgment or other final adjudication adverse to him
establishes that (1) his acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law, or (2) he personally
gained in fact a financial profit or other advantage to which he was not legally
entitled, or (3) his acts violated section 719 of the BCL. The Registrant has
entered into Indemnity Agreements with its directors and certain key officers
pursuant to which the Registrant generally is obligated to indemnify its
directors and such officers to the full extent permitted by the BCL as described
above. PSINet also has purchased directors' and officers' liability insurance.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The following is a list of all exhibits filed as part of or incorporated by
reference in this Registration Statement.
3.1 Certificate of Incorporation, as amended.
3.2 Certificate of Amendment of Certificate of Incorporation dated April
25, 1995.
3.3 Certificate of Amendment of Certificate of Incorporation, dated May
5, 1995.
3.4 Certificate of Amendment of Certificate of Incorporation, dated
November 11, 1995.
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3.5 Certificate of Amendment of Certificate of Incorporation dated May
18, 1996.
3.6 Certificate of Amendment of Certificate of Incorporation dated as of
November 6, 1997.
3.7 Certificate of Amendment of Certificate of Incorporation dated
February 5, 1998.
3.8 Certificate of Amendment of Certificate of Incorporation dated April
30, 1999.
3.9 Amended and Restated By-laws of PSINet.
4.1 Form of 10% Senior Notes due 2005.
4.2 Indenture dated as of April 13, 1998 between PSINet and Wilmington
Trust Company, as trustee.
4.3 Indenture dated as of November 3, 1998 between PSINet and Wilmington
Trust Company, as trustee.
4.4 First Supplemental Indenture dated as of November 12, 1998 between
PSINet and Wilmington Trust Company, as trustee.
4.5 Form of 11 1/2% Senior Notes due 2008, Series B.
4.6 Form of Common Stock Certificate.
4.7 Form of Common Stock Certificate (name change).
4.8 Form of 6 3/4% Series C Cumulative Convertible Preferred Stock
Certificate.
4.9 Articles Fourth, Fifth, Sixth, Ninth and Tenth of the Certificate of
Incorporation of the Company, as amended.
4.10 Article I of the Amended and Restated By-laws of PSINet, as amended.
4.11 Form of Rights Agreement, dated as of May 8, 1996, between PSINet
and First Chicago Trust Company of New York, as Rights Agent, which
includes as Exhibit A--Certificate of Amendment; Exhibit B--Form of
Rights Certificate; and Exhibit C--Summary of Rights to Purchase
Shares of Preferred Stock.
4.12 Amendment No. 1, dated as of July 21, 1997, to Rights Agreement,
dated as of May 8, 1996, between PSINet and First Chicago Trust
Company of New York, as Rights Agent.
4.13 Amendment No. 2, dated as of July 31, 1997, to Rights Agreement,
dated as of May 8, 1996, between PSINet and First Chicago Trust
Company of New York, as Rights Agent.
4.14 Deposit Agreement dated as of May 4, 1999 between PSINet and
Wilmington Trust Company, as deposit agent.
II-2
<PAGE>
5.1 Opinion of Nixon, Hargrave, Devans & Doyle LLP.**
10.1 Lease Agreement dated July 1, 1990 between PSINet and Rensselaer
Polytechnic Institute, amended by Lease, Renewal Agreement dated as
of July 1, 1993, Letter Agreement, dated November 14, 1994 and
Letter Agreement dated February 1, 1995.
10.2 Lease Agreement dated February 8, 1995 between PSINet and Rensselaer
Polytechnic Institute.
10.3 Amendment to Lease Agreement dated July 1, 1995 between PSINet and
Rensselaer Polytechnic Institute.
10.4 Lease Agreement dated as of April 30, 1993 by and between Vingarden
Limited Partnership and PSINet.
10.5 Lease Agreement dated April 1995 by and between Brit Limited
Partnership.
10.6 Sublease dated September 20, 1995 by and between The Medical
Sciences Research Institute and PSINet and Lease Agreement dated
October 6, 1993 by and between Vingarden Associates Limited
Partnership and The Medical Sciences Research Institute.
10.7 Lease Agreement dated October 31, 1995 between Oakfern Properties
Limited and PSINet.
10.8 Amendment to Deed of 460 Spring Park Technology Center dated as of
June 12, 1997 between JBG/Spring Park Limited Partnership and
PSINet.
10.9 Sublease Agreement dated as of June 2, 1997 between Lucas
Industries, Inc. and PSINet and Office Lease Agreement between 3B
Limited Partnership and Lucas Industries Inc. dated as of September
12, 1989.
10.10 Sublease Agreement dated January 22, 1998 between PSINet and Unisys
Corporation, as amended.
10.11 Lease Agreement dated February 20, 1998 between PSINet and
CarrAmerica Realty Corporation.
10.12 Lease Agreement dated October 1994 between PSINet and Cascade
Communications, Inc.
10.13 Master Lease Agreement dated July 19, 1994 between PSINet and
Technology Credit Corporation.
10.14 Lease Agreement dated as of July 9, 1993 between Applied
Telecommunications Technologies, Inc. and PSINet.
10.15 Lease Agreement dated as of February 10, 1994 between Applied
Telecommunications Technologies, Inc. and PSINet.
10.16 Lease Agreement dated as of March 14, 1994 between Applied
Telecommunications Technologies, Inc. and PSINet.
II-3
<PAGE>
10.17 Lease Agreement dated as of June 9, 1994 between Applied
Telecommunications Technologies, Inc. and PSINet.
10.18 Lease Agreement dated as of September 21, 1994 between Applied
Telecommunications Technologies, Inc. and PSINet.
10.19 Master Equipment Lease Agreement dated as of June 23, 1995 between
PSINet and Forsythe/McArthur Associates, Inc. ("FMA").
10.20 Master Lease Line Commitment Agreement dated as of June 23, 1995
between PSINet and FMA.
10.21 Amendment Agreement dated as of August 1, 1995 between PSINet and
Technology Credit Corporation.
10.22 Master Equipment Lease Agreement No. 620-0004602-000 dated November
1995 between PSINet and Siemens Credit Corporation.
10.23 Amendment to Master Lease Agreement No. 1753 dated January 26, 1996
between PSINet and Technology Credit Corporation.
10.24 Master Equipment Lease Agreement dated December 15, 1995 between
PSINet and Financing for Science International, Inc.
10.25 Security Agreement dated as of March 20, 1996 between PSINet and
USL Capital Corporation.
10.26 Master Software/Equipment Lease Agreement dated as of September 20,
1996 between PSINet and LPI Software Funding Group, Inc.
10.27 Master Lease Agreement dated as of January 27, 1997 between Cascade
Communications Corp. and PSINet.
10.28 Master Equipment/Software Rental Agreement dated as of September 11,
1997 between PSINet and Earthlink Network, Inc. and Change Order
Amendment Master Equipment dated as of September 22, 1997.
10.29 Equipment lease dated as of June 30, 1997 between Royal Bank of
Canada and PSINet Limited.
10.30 Master Lease Agreement dated as of October 10, 1997 between Cisco
Systems Capital Corporation and PSINet.
10.31 Master Lease Agreement No. A212 dated as of October 30, 1997
between 3Com Credit Corporation and PSINet, as amended.
10.32 Master Lease of Personal Property No. 3402, dated December 12, 1997
between PSINet and Charter Financial, Inc., as amended.
*10.33 Executive Stock Option Plan of PSINet.
*10.34 Executive Stock Incentive Plan of PSINet, as amended.
*10.35 Directors Stock Incentive Plan of PSINet, as amended.
II-4
<PAGE>
*10.36 Strategic Stock Incentive Plan of PSINet.
*10.37 1996 Performance Bonus Plan of PSINet.
*10.38 InterCon Systems Corporation 1992 Incentive Stock Plan.
*10.39 InterCon Systems Corporation 1994 Stock Option Plan.
*10.40 Software Ventures Corporation 1994 Stock Option Plan.
*10.41 Employment Agreement dated June 21, 1995 between PSINet and David
N. Kunkel.
*10.42 Employment Agreement dated February 9, 1996 between PSINet and
Mary-Ann Carolan.
*10.43 Employment Agreement dated February 13, 1996 between PSINet and
Mitchell Levinn.
*10.44 Employment Agreement dated April 3, 1996 between PSINet and Harold
S. Wills.
*10.45 Employment Agreement dated October 1, 1996 between PSINet and
Edward D. Postal.
*10.46 Employment Agreement dated October 9, 1996 between PSINet and
Richard R. Frizalone.
*10.47 Employment Agreement dated February 12, 1997 between PSINet and
David L. Hudson.
*10.48 Employment Agreement dated July 1, 1997 between PSINet and Michael
Malesardi.
*10.49 Employment Agreement dated August 2, 1997 between PSINet and
Anthony Aveta.
*10.50 Employment Agreement dated August 4, 1997 between PSINet and Harry
Hobbs.
*10.51 Employment Agreement dated January 8, 1998 between PSINet and
William Cripe.
*10.52 Employment Agreement dated January 18, 1998 between PSINet and
Kathleen B. Horne.
*10.53 Employment Agreement dated February 16, 1998 between PSINet and
John Muleta.
10.54 Form of Indemnification Agreement.
10.55 Registration Rights Agreement dated as of June 16, 1995 among PSINet
and Stockholders of InterCon Systems Corporation.
II-5
<PAGE>
10.56 Registration Rights Agreement dated as of July 11, 1995 among PSINet
and Stockholders of Software Ventures Corporation.
10.57 Registration Rights Agreement made as of September 19, 1996 by and
between PSINet and The Chatterjee Management Company.
10.58 Registration Rights Agreement dated as of November 11, 1997 between
PSINet and the purchasers of Series B 8% Convertible Preferred
Stock.
10.59 Registration Rights Agreement dated as of February 25, 1998 between
PSINet and IXC Internet Services, Inc.
10.60 Credit Agreement dated September 29, 1998 among PSINet, the Lenders
party thereto, The Chase Manhattan Bank, as Administrative Agent,
Fleet National Bank, as Syndication Agent, and The Bank of New York,
as Documentation Agent.
10.61 Guarantee Agreement dated September 29, 1998 among each of the
subsidiaries of PSINet party thereto and The Chase Manhattan Bank.
10.62 Pledge Agreement dated September 29, 1998 among PSINet, each
subsidiary of PSINet party thereto and The Chase Manhattan Bank.
10.63 Security Agreement dated September 29, 1998 among PSINet, each
subsidiary of PSINet party thereto and The Chase Manhattan Bank.
10.64 First Amendment dated as of October 27, 1998 to the Credit
Agreement, dated as of September 29, 1998, among PSINet, the Lenders
party thereto, The Chase Manhattan Bank, as Administrative Agent,
Fleet National Bank, as Syndication Agent, and The Bank of New York,
as Documentation Agent.
10.65 Warrant to purchase up to 25,000 shares of the Series B Preferred of
PSINet, at an exercise price of $1.60 per share, registered in the
name of William H. Baumer.
10.66 Warrant to purchase up to 25,000 shares of the Series B Preferred of
PSINet, at an exercise price of $1.60 per share, registered in the
name of William H. Baumer.
10.67 Joint Venture Agreement dated as of September 19, 1996 between
PSINet and Chatterjee Management Company.
10.68 Stock Acquisition Agreement, dated as of February 1, 1997, between
Ascend Communications, Inc., a Delaware corporation, and PSINet, a
New York corporation, with respect to all outstanding capital stock
of InterCon Systems Corporation, a Delaware corporation and a
wholly-owned subsidiary of PSINet.
10.69 Asset Purchase Agreement dated as of June 28, 1996 between PSINet
and MindSpring Enterprises, Inc.
10.70 Amendment No. 1 to Asset Purchase Agreement and Network Services
Agreement entered into as of June 28, 1996 by and between PSINet and
MindSpring Enterprises, Inc.
II-6
<PAGE>
10.71 Amendment No. 2 to Asset Purchase Agreement entered into as of
September 1, 1996 by and between PSINet and MindSpring Enterprises,
Inc.
10.72 Amendment No. 3 to Asset Purchase Agreement and Amendment No. 1 to
Convertible Note entered into as of January 24, 1997 by and between
PSINet and MindSpring Enterprises, Inc.
10.73 Amendment No. 2 to Network Services Agreement entered into as of
January 1, 1997 by and between PSINet and MindSpring Enterprises,
Inc.
10.74 IRU and Stock Purchase Agreement dated as of July 22, 1997 between
IXC Internet Services, Inc. and PSINet.
10.75 First Amendment to IRU and Stock Purchase Agreement dated as of July
22, 1997 between IXC Internet Services, Inc. and PSINet.
10.76 Second Amendment to IRU and Stock Purchase Agreement dated as of
July 22, 1997 between IXC Internet Services, Inc. and PSINet.
10.77 Joint Marketing and Services Agreement dated as of July 22, 1997
between IXC Internet Services Inc. and PSINet.
10.78 Stock Purchase Agreement dated as of November 11, 1997 between
PSINet and the Purchasers of Series B 8% Convertible Preferred
Stock.
10.79 Agreement dated as of November 10, 1997 between iSTAR internet inc.
and PSINet.
10.80 Pre-Acquisition Agreement between PSINet and iSTAR internet inc.,
dated December 23, 1997.
10.81 Security Agreement and Assignment dated as of February 25, 1998
between PSINet and IXC Internet Services, Inc.
10.82 Collocation and Interconnection Agreement between PSINet and IXC
Internet Services, Inc.
10.83 Escrow Agreement, dated as of April 13, 1998, among Wilmington Trust
Company (as escrow agent and trustee) and PSINet.
10.84 Registration Rights Agreement dated as of April 13, 1998 among
PSINet and Donaldson, Lufkin & Jenrette Securities Corporation,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Chase
Securities Inc.
10.85 First Amendment to Sublease dated as of March 23, 1998 between
Unisys Corporation and PSINet.
10.86 Share Purchase Agreement dated as of October 1, 1998 among PSINet
Japan Inc., a subsidiary of PSINet, Tokyo Internet Corporation and
Secom Co., Ltd.
10.87 Registration Rights Agreement dated as of November 3, 1998 among
PSINet and Donaldson, Lufkin & Jenrette Securities Corporation,
Chase Securities, Inc. and Morgan Stanley & Co. Incorporated.
II-7
<PAGE>
*10.88 Employment Agreement dated June 17, 1998 between PSINet and William
A. Opet.
*10.89 Employment Agreement dated July 2, 1998 between PSINet and Robert
D. Leahy.
*10.90 Employment Agreement dated September 1, 1998 between PSINet and Chi
H. Kwan.
*10.91 Employment Agreement dated September 8, 1998 between PSINet and
James A. Haid.
*10.92 Employment Agreement dated September 30, 1998 between PSINet and
Sandy L. Blaisdell.
*10.93 Employment Agreement dated October 12, 1998 between PSINet and
Geoffrey E. Axton.
*10.94 Employment Agreement dated October 14, 1998 between PSINet and
Edward Arnold Davis.
*10.95 Amendment to Employment Agreement dated October 1, 1998 between
PSINet and Harry Hobbs.
*10.96 Employment Agreement dated November 2, 1998 between PSINet and
David J. Kramer.
*10.97 Employment Agreement dated November 6, 1998 between PSINet and John
Walpuck.
*10.98 Employment Agreement dated November 12, 1998 between PSINet and
Lawrence Winkler.
*10.99 Employment Agreement dated March 19, 1999 between PSINet and Nadir
Desai.
*10.100 Employment Agreement dated April 15, 1999 between PSINet and Leroy
M. Sloan.
10.101 Registration Rights Agreement, dated as of November 13, 1998, among
PSINet and Donaldson, Lufkin & Jenrette Securities Corporation,
Chase Securities Inc. and Morgan Stanley & Co. Incorporated.
10.102 Second Amendment dated as of November 9, 1998, to the Credit
Agreement, dated as of September 29, 1998, among PSINet, the
Lenders party thereto, the Chase Manhattan Bank, as Administrative
Agent, Fleet National Bank, as Syndication Agent, and The Bank of
New York, as Documentation Agent.
10.103 Master Lease Agreement between PSINet and Technology Credit
Corporation No. 1788 dated June 20, 1998.
10.104 Master Lease Agreement between PSINet and Technology Credit
Corporation No. 1789 dated June 20, 1998.
II-8
<PAGE>
10.105 Master Loan and Security Agreement No. 3963 between PSINet and
Charter Financial Inc. dated September 28, 1998.
10.106 Lease Agreement dated July 8, 1998 between Ballymore Properties
Limited and Cordoba Holdings Limited and Thomas Charles Cembrinck.
11.1 Calculation of Basic and Diluted Loss Per Share and Weighted
Average Shares for the Year Ended December 31, 1998.
11.2 Calculation of Basic and Diluted Loss Per Share and Weighted
Average Shares for the Year Ended December 31, 1997.
11.3 Calculation of Basic and Diluted Loss Per Share and Weighted
Average Shares for the Year Ended December 31, 1996.
11.4 Calculation of Basic and Diluted Loss Per Share and Weighted
Average Shares Used in Calculation for the Three Months Ended March
31, 1999.
21 Significant subsidiaries of PSINet.
23.1 Consent of Nixon, Hargrave, Devans & Doyle LLP.**
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (set forth on the signature page to this
registration statement).
* Indicates a management contract or compensatory plan or arrangement
required to be filed as an Exhibit pursuant to Item 14(a)(3).
** To be filed by amendment or pursuant to a Form 8-K.
FINANCIAL STATEMENTS AND SCHEDULE:
Financial Statements:
Our financial statements are incorporated by reference in this registration
statement from our annual report on Form 10-K for our fiscal year ended
December 31, 1998.
Financial Statement Schedule:
II-Valuation and Qualifying Accounts for each of the three years in the
period ended December 31, 1998 is incorporated by reference in this
registration statement from our annual report on Form 10-K for our fiscal
year ended December 31, 1998.
All other schedules are omitted because they are not applicable or the
required information is shown in the financial statements or notes thereto.
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes that insofar as
indemnification for liabilities arising under the Securities Act of 1933, as
amended (the "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
II-9
<PAGE>
(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.
(b) 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 end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the SEC 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 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,
Form 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 SEC 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, 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.
(c) 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 (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.
(d) (1) The undersigned Registrant hereby undertakes as follows: that
prior to any public reoffering of the securities registered hereunder
through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter
within the meaning of Rule 145(c), the issuer undertakes that such
reoffering prospectus will contain the information called for
II-10
<PAGE>
by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information
called for by the other items of the applicable form.
(2) The Registrant undertakes that every prospectus: (i) that is filed
pursuant to paragraph (1) immediately preceding, or (ii) that purports
to meet the requirements of Section 10(a) (3) of the Act and is used
in connection with an offering of securities subject to Rule 415, will
be filed as a part of an amendment to the registration statement and
will not be used until such amendment is effective, and that, for
purposes 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.
(e) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was
declared effective.
(2) For purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus 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.
(f) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(g) The undersigned Registrant hereby undertakes:
(1) To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Securities and Exchange Act of
1934; and, where interim financial information required to be
presented by Article 3 of regulation S-X are not set forth in the
prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that
is specifically incorporated by reference in the prospectus to provide
such interim information.
(2) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of
this form, within one business day of receipt of such request, and to
send the incorporated documents by first class mail or other equally
prompt means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement through
the date of responding to the request.
II-11
<PAGE>
SIGNATURES
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-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Herndon, Commonwealth of Virginia on May 25, 1999.
PSINet Inc.
By: /s/ William L. Schrader
--------------------------------------------
William L. Schrader, Chairman and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints David N. Kunkel, Edward D. Postal,
Lawrence Winkler, Michael J. Malesardi and Kathleen B. Horne, and each or any of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933 and any and all amendments
(including post-effective amendments) to this registration statement and to any
registration statement filed pursuant to Rule 462(b), and to file same, with all
exhibits thereto and, other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the foregoing, 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 either of them, or their
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, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ William L. Schrader Chairman, Chief Executive Officer May 25, 1999
- ------------------------------------- and Director (Principal Executive
William L. Schrader Officer)
/s/ Harold S. Wills President, Chief Operating Officer May 25, 1999
- ------------------------------------- and Director
Harold S. Wills
/s/ David N. Kunkel Executive Vice President, General May 25, 1999
- ------------------------------------- Counsel and Director
David N. Kunkel
/s/ Edward D. Postal Senior Vice President and Chief May 25, 1999
- ------------------------------------- Financial Officer (Principal
Edward D. Postal Financial Officer)
/s/ Michael J. Malesardi Vice President and Controller May 25, 1999
- ------------------------------------- (Principal Accounting Officer)
Michael J. Malesardi
</TABLE>
S-1
<PAGE>
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ William H. Baumer Director May 25, 1999
- -------------------------------------
William H. Baumer
/s/ Ralph J. Swett Director May 25, 1999
- -------------------------------------
Ralph J. Swett
/s/ Ian P. Sharp Director May 25, 1999
- -------------------------------------
Ian P. Sharp
</TABLE>
S-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
3.1 Certificate of Incorporation, as amended Incorporated by reference from Exhibit 3.1 to
PSINet's Registration Statement on Form S-1
declared effective on May 1, 1995 located under
Securities and Exchange Commission File No.
33-90154 ("May 1995 Registration Statement")
3.2 Certificate of Amendment of Certificate of Incorporated by reference from Exhibit 3.1 to
Incorporation dated April 25, 1995 PSINet's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1995 located under
Securities and Exchange Commission File No.
0-25812 ("June 1995 10-Q")
3.3 Certificate of Amendment of Certificate of Incorporated by reference from Exhibit 3.2 to
Incorporation Dated May 5, 1995 the June 1995 10-Q
3.4 Certificate of Amendment of Certificate of Incorporated by reference from Exhibit 3.1 to
Incorporation Dated November 11, 1995 PSINet's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1995 located under
Securities and Exchange Commission File No.
0-25812 ("September 1995 10-Q")
3.5 Certificate of Amendment of Certificate of Incorporated by reference from Exhibit 3 to
Incorporation, dated May 18, 1996 PSINet's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996 located under
Securities and Exchange Commission File No.
0-25812 ("June 1996 10-Q")
3.6 Certificate of Amendment of Certificate of Incorporated by reference from Exhibit 3.1 to
Incorporation dated as of November 6, 1997 the September 1997 10-Q
3.7 Certificate of Amendment of Certificate of Incorporated by reference from Exhibit 3.7 to
Incorporation dated February 5, 1998 PSINet's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 located
under Securities and Exchange Commission File
No. 0-25812 ("1997 Form 10-K")
3.8 Certificate of Amendment of Certificate of Incorporated by reference from Exhibit 3.1 to
Incorporation dated April 30, 1999 PSINet's Current Report on Form 8-K dated May
7, 1999 located under Securities Exchange
Commission File No. 0-25812 ("May 7, 1999 8-K")
3.9 Amended and Restated By-laws of PSINet Incorporated by reference from Exhibit 3.8 to
PSINet's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998 located
under Securities and Exchange Commission File
No. 0-25812 ("1998 Form 10-K")
4.1 Form of 10% Senior Notes due 2005 Incorporated by reference from Exhibit 4.1 to
PSINet's Current Report on Form 8-K dated April
22, 1998 located under Securities and Exchange
Commission File No. 0-25812 ("April 22, 1998
8-K")
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
4.2 Indenture dated as of April 13, 1998 between Incorporated by reference from Exhibit 4.2 to
PSINet and Wilmington Trust Company, as Trustee the April 22, 1998 8-K
4.3 Indenture dated as of November 3, 1998 Incorporated by reference from Exhibit 4.1 to
between PSINet and Wilmington Trust Company, as the November 10, 1998 8-K
trustee
4.4 First Supplemental Indenture dated as of November Incorporated by reference from Exhibit 4.1 to
12, 1998 between PSINet and Wilmington Trust PSINet's Quarterly Report on Form 10-Q for the
Company, as trustee quarter ended September 30, 1998 located under
Securities and Exchange Commission File No.
0-25812 ("September 1998 10-Q")
4.5 Form of 11 1/2% Senior Notes due 2008, Series B Incorporated by reference from PSINet's
Registration Statement on Form S-4 declared
effective on February 16, 1999 located under
Securities and Exchange Commission File No.
333-68385
4.6 Form of Common Stock Certificate Incorporated by reference from Exhibit 4.1 to
the May 1995 Registration Statement
4.7 Form of Common Stock Certificate (name change) Incorporated by reference from Exhibit 4.1A to
PSINet's Registration Statement on Form S-1
declared effective on December 14, 1995 located
under Securities and Exchange Commission File
No. 33-99610 ("December 1995 Registration
Statement")
4.8 Form of 6 3/4% Series C Cumulative Convertible Incorporated by reference from Exhibit 4.1 to
Preferred Stock Certificate the May 7, 1999 8-K
4.9 Articles Fourth, Fifth, Sixth, Ninth and Tenth of See Exhibits 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7
the Certificate of Incorporation of PSINet, as
amended
4.10 Article I of the Amended and Restated By-laws of See Exhibit 3.9
PSINet, as amended
4.11 Forms of Rights Agreement, dated as of May 8, 1996, Incorporated by reference from Exhibit 1 to
between PSINet and First Chicago Trust Company of PSINet's Registration Statement on Form 8-A
New York, as Rights Agent, which includes as dated June 3, 1996 located under Securities and
Exhibit A - Certificate of Amendment; Exhibit B - Exchange Commission File No. 0-25812
Form of Rights Certificate; and Exhibit C - Summary
of Rights to Purchase Shares of Preferred Stock
4.12 Amendment No. 1, dated as of July 21, 1997, to Incorporated by reference from Exhibit 4.1.1 to
Rights Agreement, dated as of May 8, 1996, between PSINet's Current Report on Form 8-K dated
PSINet and First Chicago Trust Company of New York, August 1, 1997 located under Securities and
as Rights Agent. Exchange Commission File No. 0-25812
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
4.13 Amendment No. 2, dated as of July 31, 1997, to Incorporated by reference from Exhibit 4.1.2 to
Rights Agreement, dated as of May 8, 1996, between PSINet's Current Report on Form 8-K dated
PSINet and First Chicago Trust Company of New York, August 20, 1997 located under Securities and
as Rights Agent. Exchange Commission File No. 0-25812
4.14 Deposit Agreement dated as of May 4, 1999 between Incorporated by reference from Exhibit 4.2 to
PSINet and Wilmington Trust Company, as deposit the May 7, 1999 8-K
agent
5.1 Opinion of Nixon, Hargrave, Devans & Doyle LLP **
10.1 Lease Agreement dated July 1, 1990 between PSINet Incorporated by reference from Exhibit 10.1 to
and Rensselaer Polytechnic Institute, amended by the May 1995 Registration Statement
Lease Renewal Agreement dated as of July 1, 1993,
Letter Agreement dated November 14, 1994 and Letter
Agreement dated February 1, 1995
10.2 Lease Agreement dated February 8, 1995 between Incorporated by reference from Exhibit 10.2 to
PSINet and Rensselaer Polytechnic Institute the May 1995 Registration Statement
10.3 Amendment to Lease Agreement dated July 1, 1995 Incorporated by reference from Exhibit 10.2A to
between PSINet and Rensselaer Polytechnic Institute the December 1995 Registration Statement
10.4 Lease Agreement dated as of April 30, 1993 by and Incorporated by reference from Exhibit 10.3 to
between Vingarden Limited Partnership and PSINet the May 1995 Registration Statement
10.5 Lease Agreement dated April 1995 by and between Incorporated by reference from by Exhibit 10.3A
Brit Limited Partnership and PSINet to the December 1995 Registration Statement
10.6 Sublease dated September 20, 1995 by and between Incorporated by reference from Exhibit 10.3B to
The Medical Sciences Research Institute and PSINet the December 1995 Registration Statement
and Lease Agreement dated October 6, 1993 by and
between Vingarden Associates Limited Partnership
and The Medical Sciences Research Institute
10.7 Lease Agreement dated October 31, 1995 between Incorporated by reference from Exhibit 10.4A to
Oakfern Properties Limited and PSINet the December 1995 Registration Statement
10.8 Amendment to Deed of 460 Spring Park Technology Incorporated by reference from Exhibit 10.1 to
Center dated as of June 12, 1997 between JBG/ the September 1997 Form 10-Q
Spring Park Limited Partnership and PSINet
10.9 Sublease Agreement dated as of June 2, 1997 between Incorporated by reference from Exhibit 10.2 to
Lucas Industries, Inc. and PSINet and Office Lease the September 1997 10-Q
Agreement between 3B Limited Partnership and Lucas
Industries Inc. dated as of September 12, 1989
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
10.10 Sublease Agreement dated January 22, 1998 between Incorporated by reference from Exhibit 10.9 to
PSINet and Unisys Corporation, as amended the 1997 Form 10-K
10.11 Lease Agreement dated February 20, 1998 between Incorporated by reference from Exhibit 10.11 to
PSINet and CarrAmerica Realty Corporation the 1997 Form 10-K
10.12 Lease Agreement dated October 1994 between PSINet Incorporated by reference from Exhibit 10.4 to
and Cascade Communications, Inc. the May 1995 Registration Statement
10.13 Master Lease Agreement dated July 19, 1994 between Incorporated by reference from Exhibit 10.5 to
PSINet and Technology Credit Corporation the May 1995 Registration Statement
10.14 Lease Agreement dated as of July 9, 1993 between Incorporated by reference from Exhibit 10.6 to
Applied Telecommunications Technologies, Inc. and the May 1995 Registration Statement
PSINet
10.15 Lease Agreement dated as of February 10, 1994 Incorporated by reference from Exhibit 10.7F to
between Applied Telecommunications Technologies, the December 1995 Registration Statement
Inc. and PSINet
10.16 Lease Agreement dated as of March 14, 1994 between Incorporated by reference from Exhibit 10.7G to
Applied Telecommunications Technologies, Inc. and the December 1995 Registration Statement
PSINet
10.17 Lease Agreement dated as of June 9, 1994 between Incorporated by reference from Exhibit 10.7H to
Applied Telecommunications Technologies, Inc. and the December 1995 Registration Statement
PSINet
10.18 Lease Agreement dated as of September 21, 1994 Incorporated by reference from Exhibit 10.7 to
between Applied Telecommunications Technologies, the May 1995 Registration Statement
Inc. and PSINet
10.19 Master Equipment Lease Agreement dated as of June Incorporated by reference from Exhibit 10.1 to
23, 1995 between PSINet and Forsythe/McArthur the September 1995 10-Q
Associates, Inc. ("FMA")
10.20 Master Lease Line Commitment Agreement dated as of Incorporated by reference from Exhibit 10.2 to
June 23, 1995 between PSINet and FMA the September 1995 10-Q
10.21 Amendment Agreement dated as of August 1, 1995 Incorporated by reference from Exhibit 10.8 to
between PSINet and Technology Credit Corporation the September 1995 10-Q
10.22 Master Equipment Lease Agreement No. Incorporated by reference from Exhibit 10.44A
620-0004602-000 dated November 1995 between PSINet to the December 1995 Registration Statement
and Siemens Credit Corporation
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
10.23 Amendment to Master Lease Agreement No. 1753 dated Incorporated by reference from Exhibit 10.77 to
January 26, 1996 between PSINet and Technology PSINet's Annual Report on Form 10-K for the
Credit Corporation fiscal year ended December 31, 1995 located
under the Securities and Exchange Commission
File No. 0-25812 ("1995 Form 10-K")
10.24 Master Equipment Lease Agreement dated December 15, Incorporated by reference from Exhibit 10.78 to
1995 between PSINet and Financing for Science the 1995 Form 10-K
International, Inc.
10.25 Security Agreement dated as of March 20, 1996 Incorporated by reference from Exhibit 10.79 to
between PSINet and USL Capital Corporation the 1995 Form 10-K
10.26 Master Software/Equipment Lease Agreement dated as Incorporated by reference from Exhibit 10.4 to
of September 20, 1996 between PSINet and LPI PSINet's Quarterly Report on Form 10-Q for the
Software Funding Group, Inc. quarter ended September 30, 1996 located under
Securities and Exchange Commission File No.
0-25812 ("September 1996 10-Q")
10.27 Master Lease Agreement dated as of January 27, 1997 Incorporated by reference from Exhibit 10.77 to
between Cascade Communications Corp. and PSINet PSINet's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996 located
under Securities and Exchange Commission File
No. O-25812 ("1996 Form 10-K")
10.28 Master Equipment/Software Rental Agreement dated as Incorporated by reference from Exhibit 10.3 to
of September 11, 1997 between PSINet and Earthlink the September 1997 10-Q
Network, Inc. and Change Order Amendment Master
Equipment dated as of September 22, 1997
10.29 Equipment lease dated as of June 30, 1997 between Incorporated by reference from Exhibit 10.4 to
Royal Bank of Canada and PSINet Limited the September 1997 10-Q
10.30 Master Lease Agreement dated as Incorporated by reference from Exhibit 10.4 to
Of October 10, 1997 between Cisco Systems Capital the September 1997 Form 10-Q
Corporation and PSINet
10.31 Master Lease Agreement No. A212 between 3Com Credit Incorporated by reference from dated as of
Corporation and PSINet, as amended October 30, 1997 Exhibit 10.31 to the 1997 Form
10-K
10.32 Master Lease of Personal Property No. 3402, dated Incorporated by reference from Exhibit 10.32 to
December 12, 1997 between PSINet and Charter the 1997 Form 10-K
Financial, Inc., as amended
10.33 * Executive Stock Option Plan of Incorporated by reference from Exhibit 10.10 to
PSINet the May 1995 Registration Statement
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
10.34 * Executive Stock Incentive Plan of PSINet, as amended Incorporated by reference from Exhibit 10.12 to
the December 1995 Registration Statement
10.35 * Directors Stock Incentive Plan of PSINet, as amended Incorporated by reference from Exhibit 10.13 to
the December 1995 Registration Statement
10.36 * Strategic Stock Incentive Plan of PSINet Incorporated by reference from Exhibit 10 to
the June 1995 10-Q
10.37 * 1996 Performance Bonus Plan of PSINet Incorporated by reference from Exhibit 10.25 to
the 1996 Form 10- K
10.38 * InterCon Systems Corporation 1992 Incentive Stock Incorporated by reference from Exhibit 99.1 to
Plan PSINet's Registration Statement on Form S-8
which became effective on October 18, 1995
located under Securities Exchange Commission
File No. 33-98316 ("S-8 No. 16")
10.39 * InterCon Systems Corporation 1994 Stock Option Plan Incorporated by reference from Exhibit 99.2 to
the S-8 No. 16
10.40 * Software Ventures Corporation 1994 Stock Option Plan Incorporated by reference from Exhibit 99 to
PSINet's Registration Statement on Form S-8
which became effective on October 18, 1995
located under Securities and Exchange
Commission File No. 33-98314
10.41 * Employment Agreement dated February 9, 1996 between Incorporated by reference from Exhibit 10.42 to
PSINet and Mary-Ann Carolan the 1995 Form 10-K
10.42 * Employment Agreement dated February 13, 1996 Incorporated by reference from Exhibit 10.19 to
between PSINet and Mitchell Levinn the 1995 10-K
10.43 * Employment Agreement dated October 9, 1996 between Incorporated by reference from Exhibit 10.3 to
PSINet and Richard R. Frizalone the September 1996 10-Q
10.44 * Employment Agreement dated February 12, 1997 Incorporated by reference from Exhibit 10.78 to
between PSINet and David L. Hudson the 1996 Form 10-K
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
10.45 * Employment Agreement dated July 1, 1997 between Incorporated by reference from Exhibit 10.5 to
PSINet and Michael Malesardi the September 1997 10-Q
10.46 * Employment Agreement dated August 2, 1997 between Incorporated by reference from Exhibit 10.6 to
PSINet and Anthony Aveta the September 1997 10-Q
10.47 * Employment Agreement dated August 4, 1997 between Incorporated by reference from Exhibit 10.7 to
PSINet and Harry Hobbs the September 1997 10-Q
10.48 * Employment Agreement dated January 8, 1998 between Incorporated by reference from Exhibit 10.52 to
PSINet and William Cripe the 1997 Form 10-K
10.49 * Employment Agreement dated January 18, 1998 between Incorporated by reference from Exhibit 10.53 to
PSINet and Kathleen B. Horne the 1997 Form 10-K
10.50 * Employment Agreement dated February 16, 1998 Incorporated by reference from Exhibit 10.54 to
between PSINet and John Muleta the 1997 Form 10-K
10.51 * Employment Agreement dated October 16, 1998 Incorporated by reference from Exhibit 10.57 to
between PSINet and Harold S. Wills the 1998 Form 10-K
10.52 * Employment Agreement dated October 16, 1996 Incorporated by reference from Exhibit 10.58 to
between PSINet and Edward D. Postal the 1998 Form 10-K
10.53 * Employment Agreement dated October 16, 1998 Incorporated by reference from Exhibit 10.59 to
between PSINet and David N. Kunkel the 1998 Form 10-K
10.54 Form of Indemnification Agreement Incorporated by reference from Exhibit 10.21 to
the May 1995 Registration Statement
10.55 Registration Rights Agreement dated as of June 16, Incorporated by reference from Exhibit 10.39
1995 among PSINet and Stockholders of InterCon to the December 1995 Registration Statement
Systems Corporation
10.56 Registration Rights Agreement dated as of July 11, Incorporated by reference from Exhibit 10.40
1995 among PSINet and Stockholders of Software to the December 1995 Registration Statement
Ventures Corporation
10.57 Registration Rights Agreement made as of September Incorporated by reference from Exhibit 10.1 to
19, 1996 by and between PSINet and The Chatterjee the September 1996 10-Q
Management Company
10.58 Registration Rights Agreement dated as of November Incorporated by reference from Exhibit 10.10 to
11, 1997 between PSINet and the purchasers of the September 1997 10-Q
Series B 8% Convertible Preferred Stock
10.59 Registration Rights Agreement dated as of February Incorporated by reference from Exhibit 10.62 to
25, 1998 between PSINet and IXC Internet Services, the 1997 Form 10-K
Inc.
10.60 Credit Agreement dated September 29, 1998 among Incorporated by reference from Exhibit 2.2 to
PSINet, the Lenders party thereto, The Chase PSINet's October 16, 1998 8-K
Manhattan Bank, as Administrative Agent, Fleet
National Bank, as Syndication Agent, and The Bank
of New York as Documentation Agent
10.61 Guarantee Agreement dated September 29, 1998 among Incorporated by reference from Exhibit 2.3 to
each of the subsidiaries of PSINet party thereto the October 16, 1998 8-K
and The Chase Manhattan Bank
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
10.62 Pledge Agreement dated September 29, 1998 among Incorporated by reference from Exhibit 2.4 to
PSINet, each subsidiary of PSINet party thereto and the October 16, 1998 8-K
The Chase Manhattan Bank
10.63 Security Agreement dated September 29, 1998 among Incorporated by reference from Exhibit 2.5 to
PSINet, each subsidiary of PSINet party thereto and the October 16, 1998 8-K
The Chase Manhattan Bank
10.64 First Amendment dated as of October 27, 1998 to the Incorporated by reference from Exhibit 10.2 to
Credit Agreement dated as of September 29, 1998, the November 10, 1998 8-K
among PSINet, the Lenders party thereto, The Chase
Manhattan Bank, as Administrative Agent, Fleet
National Bank, as Syndication Agent, and the Bank
of New York, as Documentation Agent
10.65 Warrant to purchase up to 25,000 shares of the Incorporated by reference from Exhibit 10.39 to
Series B Preferred of PSINet, at an exercise price the May 1995 Registration Statement
of $1.60 per share, registered in the name of
William H. Baumer
10.66 Warrant to purchase up to 25,000 shares of the Incorporated by reference from Exhibit 10.40 to
Series B Preferred of PSINet, at an exercise price the May 1995 Registration Statement
of $1.60 per share, registered in the name of
William H. Baumer
10.67 Joint Venture Agreement dated as of September 19, Incorporated by reference from Exhibit 2 to
1996 between PSINet and Chatterjee Management Amendment No. 1 to PSINet's Quarterly Report on
Company Form 10-Q for the quarter ended September 30,
1996 located under Securities and Exchange
Commission File No. 0-25812
10.68 Stock Acquisition Agreement, dated as of February Incorporated by reference from Exhibit 2 to
1, 1997, between Ascend Communications, Inc. and PSINet's Current Report on Form 8-K dated
PSINet with respect to all outstanding capital February 14, 1997 located under Securities and
stock of InterCon Systems Corporation, a Delaware Exchange Commission File No. 0-25812
corporation and a wholly-owned subsidiary of PSINet
10.69 Asset Purchase Agreement dated as of June 28, 1996 Incorporated by reference from Exhibit 2 to the
between PSINet and MindSpring Enterprises, Inc. June 1996 10-Q
10.70 Amendment No. 1 to Asset Purchase Agreement and Incorporated by reference from Exhibit 2 to the
Network Services Agreement entered into as of June September 1996 10-Q
28, 1996 by and between PSINet and MindSpring
Enterprises, Inc.
10.71 Amendment No. 2 to Asset Purchase Agreement entered Incorporated by reference from Exhibit 10.8 to
into as of September 1, 1996 by and between PSINet the September 1996 10-Q
and MindSpring Enterprises, Inc.
</TABLE>
-8-
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
10.72 Amendment No. 3 to Asset Purchase Agreement and Incorporated by reference from Exhibit 10.74 to
Amendment No. 1 to Convertible Note entered into the 1996 Form 10-K
as of January 24, 1997 by and between PSINet and
MindSpring Enterprises, Inc.
10.73 Amendment No. 2 to Network Services Agreement Incorporated by reference from Exhibit 10.75 to
entered in as of January 1, 1997 by and between the 1996 Form 10-K
PSINet and MindSpring Enterprises, Inc.
10.74 IRU and Stock Purchase Agreement dated as of July Incorporated by reference from Exhibit 2.1 to
22, 1997 between IXC Internet Services, Inc. and the June 1997 10-Q/A2
PSINet
10.75 First Amendment to IRU and Stock Purchase Agreement Incorporated by reference from Exhibit A to
dated as of July 22, 1997 between IXC Internet PSINet's December 1997 Proxy Statement
Services, Inc. and PSINet
10.76 Second Amendment to IRU and Stock Purchase Incorporated by reference from Exhibit A to the
Agreement dated as of July 22, 1997 between IXC December 1997 Proxy Statement
Internet Services, Inc. and PSINet
10.77 Joint Marketing and Services Agreement dated as of Incorporated by reference from Exhibit 10.1 to
July 22, 1997 between IXC Internet Services, Inc. Amendment No. 1 to PSINet's Quarterly Report on
and PSINet Form 10-Q for the quarter ended June 30, 1996
located under Securities and Exchange
Commission File no. 0-25812
10.78 Stock Purchase Agreement dated as of November 11, Incorporated by reference from Exhibit 10.9 to
1997 between PSINet and the Purchasers of its the September 1997 10-Q
Series B 8% Convertible Preferred Stock
10.79 Agreement dated as of November 10, 1997 between Incorporated by reference from Exhibit 2 to the
iSTAR internet inc. and PSINet September 1997 10-Q
10.80 Pre-Acquisition Agreement between PSINet and iSTAR Incorporated by reference from Exhibit 10.1 to
internet inc., dated December 23, 1997 the January 7, 1998 8-K
10.81 Security Agreement and Assignment dated as of Incorporated by reference from Exhibit 10.95 to
February 25, 1998 between PSINet and IXC Internet the 1997 Form 10-K
Services, Inc.
10.82 Collocation and Interconnection Agreement between Incorporated by reference from Exhibit 10.96 to
PSINet and IXC Internet Services, Inc. the 1997 Form 10-K
10.83 Escrow Agreement, dated as of April 13, 1998, Incorporated by reference from Exhibit 10.2 to
among Wilmington Trust Company (as escrow agent and the April 22, 1998 8-K
trustee) and PSINet.
10.84 Registration Rights Agreement dated as of April 13, Incorporated by reference from Exhibit 10.1 to
1998 among PSINet and Donaldson, Lufkin & Jenrette the April 22, 1998 8-K
Securities Corporation, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, and Chase Securities,
Inc.
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
10.85 First Amendment to Sublease dated as of March 23, Incorporated by reference from Exhibit 10.99 to
1998 between Unisys Corporation and PSINet PSINet's Registration Statement on Form S-4
declared effective on May 7, 1998 located under
the Securities and Exchange Commission File
No. 333-51491 ("May 1998
Registration Statement")
10.86 Share Purchase Agreement dated as of October 1, Incorporated by reference from Exhibit 2.1 to
1998 among PSINet Japan Inc., a subsidiary of the October 16, 1998 8-K
PSINet, Tokyo Internet Corporation and Secom Co.,
Ltd.
10.87 Registration Rights Agreement dated as of November Incorporated by reference from Exhibit 10.1 to
3, 1998 among PSINet and Donaldson, Lufkin and the November 10, 1998 8-K
Jenrette Securities Corporation, Chase Securities,
Inc. and Morgan Stanley & Co. Incorporated
10.88 * Employment Agreement dated June 17, 1998 between Incorporated by reference from Exhibit 10.1 to
PSINet and William A. Opet PSINet's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1998 located under
Securities and Exchange Commission File No.
0-25812 ("June 1998 10-Q")
10.89 * Employment Agreement dated July 2, 1998 between Incorporated by reference from Exhibit 10.2 to
PSINet and Robert D. Leahy the June 1998 10-Q
10.90 * Employment Agreement dated September 1, 1998 Incorporated by reference from Exhibit 10.8 to
between PSINet and Chi H. Kwan the September 1998 10-Q
10.91 * Employment Agreement dated September 8, 1998 Incorporated by reference from Exhibit 10.5 to
between PSINet and James A. Haid the September 1998 10-Q
10.92 * Employment Agreement dated September 30, 1998 Incorporated by reference from Exhibit 10.3 to
between PSINet and Sandy L. Blaisdell the September 1998 10-Q
10.93 * Employment Agreement dated October 12, 1998 between Incorporated by reference from Exhibit 10.2 to
PSINet and Geoffrey E. Axton the September 1998 10-Q
10.94 * Employment Agreement dated October 14, 1998 between Incorporated by reference from Exhibit 10.4 to
PSINet and Edward Arnold Davis the September 1998 10-Q
10.95 * Amendment to Employment Agreement dated October 1, Incorporated by reference from Exhibit 10.6 to
1998 between PSINet and Harry Hobbs the September 1998 10-Q
10.96 * Employment Agreement dated November 2, 1998 between Incorporated by reference from Exhibit 10.7 to
PSINet and David J. Kramer the September 1998 10-Q
10.97 * Employment Agreement dated November 6, 1998 between Incorporated by reference from Exhibit 10.9 to
PSINet and John Walpuck the September 1998 10-Q
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
10.98 * Employment Agreement dated November 12, 1998 Incorporated by reference from Exhibit 10.10 to
between PSINet and Lawrence Winkler the September 1998 10-Q
10.99 Employment Agreement dated March 19, 1999 between Incorporated by reference from Exhibit 10.1 to
PSINet and Nadir Desai PSINet's Current Report on Form 8-K dated April
27, 1999 located under Securities Exchange
Commission File No. 0-25812 ("April 27, 1999
8-K")
10.100 Employment Agreement dated April 15, 1999 between Incorporated by reference from Exhibit 10.1 to
PSINet and Leroy M. Sloan PSINet's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999 located under the
Securities and Exchange Commission File No.
0-25812 ("March 31, 1999 10-Q")
10.101 Registration Rights Agreement, dated as of November Incorporated by reference from Exhibit 4.3 to
13, 1998, among PSINet and Donaldson Lufkin & the September 1998 10-Q
Jenrette Securities Corporation, Chase Securities
Inc. and Morgan Stanley & Co. Incorporated
10.102 Second Amendment dated as of November 9, 1998, to Incorporated by reference from Exhibit 10.1 to
the Credit Agreement, dated as of September 29, the September 1998 10-Q
1998, among PSINet, the Lenders party thereto, the
Chase Manhattan Bank, as Administrative Agent,
Fleet National Bank, as Syndication Agent, and The
Bank of New York, as Documentation Agent
10.103 Master Lease Agreement between PSINet and Incorporated by reference from Exhibit 10.11 to
Technology Credit Corporation No. 1788 dated June the September 1998 10-Q
20, 1998
10.104 Master Lease Agreement between PSINet and Incorporated by reference from Exhibit 10.12 to
Technology Credit Corporation No. 1789 dated June the September 1998 10-Q
20, 1998
10.105 Master Loan and Security Agreement No. 3963 between Incorporated by reference from Exhibit 10.13 to
PSINet and Charter Financial Inc. dated September the September 1998 10-Q
28, 1998
10.106 Lease Agreement dated July 8, 1998 between Incorporated by reference from Exhibit 10.2 to
Ballymore Properties Limited and Cordoba Holdings the April 27, 1999 8-K
Limited and Thomas Charles Cembrinck
11.1 Calculation of Basic and Diluted Loss Per Share and Incorporated by reference from Exhibit 11.1 to
Weighted Average Shares for the Year Ended December the 1998 Form 10-K
31, 1998
11.2 Calculation of Basic and Diluted Loss Per Share and Incorporated by reference from Exhibit 11.2 to
Weighted Average Shares for the Year Ended December the 1998 Form 10-K
31, 1997
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
<S> <C> <C>
11.3 Calculation of Basic and Diluted Loss Per Share and Incorporated by reference from Exhibit 11.3 to
Weighted Average Shares for the Year Ended December the 1998 Form 10-K
31, 1996
11.4 Calculation of Basic and Diluted Loss Per Share and Incorporated by reference from Exhibit 11.1 to
Weighted Average Shares Used in Calculation for the the March 31, 1999 10-Q
Three Months Ended March 31, 1999
21 Significant subsidiaries of PSINet Incorporated by reference from Exhibit 21 to
the 1998 Form 10-K
23.1 Consent of Nixon, Hargrave, Devans & Doyle LLP Contained in Exhibit 5.1
23.2 Consent of PricewaterhouseCoopers LLP Filed herewith
24 Power of Attorney Set forth on the signature page to this
registration statement
</TABLE>
- ----------
* Indicates a management contract or compensatory plan or arrangement required
to be filed as an Exhibit pursuant to Item 14(a)(3).
** To be filed by amendment or pursuant to a Form 8-K.
-12-
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-4 of PSINet Inc. of our report dated March 9, 1999, except
as to Note 11, which is as of March 25, 1999, relating to the consolidated
financial statements and financial statement schedule appearing in PSINet Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1998. We also
consent to the reference to us under the heading "Experts" included in such
Registration Statement.
PricewaterhouseCoopers LLP
Washington, DC
May 21, 1999
