As filed with the Securities and Exchange Commission on June 16, 2000
Registration No. 333 -
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PSINET INC.
(Exact name of registrant as specified in its charter)
New York 16-1353600
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
44983 Knoll Square, Ashburn, Virginia 20147
(Address of principal executive offices) (Zip Code)
LONG-TERM INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Kathleen B. Horne, Esq.
Senior Vice President and General Counsel
PSINet Inc.
44983 Knoll Square, Ashburn, Virginia 20147
(Name and address of agent for service)
Telephone No.: (703) 726-4100 / Facsimile No.: (703) 726-4265
(Telephone number, including area code, of agent for service)
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Copy to:
Richard F. Langan, Jr., Esq.
Nixon Peabody LLP
437 Madison Avenue, New York, New York 10022
Telephone No.: (212) 940-3140/Facsimile No.: (212) 940-9940
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price Aggregate offering Amount of
to be registered registered (1) per share (2) price (2) registration fee
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Common Stock, $.01 par value 4,221,104 $30.25 $127,688,396 $33,710
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(1) Represents (i) 3,906,104 shares issuable upon the exercise of
options granted under the Long-Term Incentive Plan, (ii) 315,000 shares issuable
upon the exercise of options granted under the Employee Stock Purchase Plan, and
(iii) pursuant to Rule 416(a) of the Securities Act of 1933, such indeterminate
number of shares as may be issued by reason of any stock split, stock dividend,
recapitalization or similar transaction effected without the receipt of
consideration which results in an increase in the number of outstanding shares
of PSINet common stock.
(2) Estimated in accordance with Rule 457(c) under the Securities Act
of 1933 solely for the purpose of calculating the registration fee. The
computation is based upon the average of the high and low prices of our common
stock as reported on the Nasdaq Stock Market's National Market on June 13, 2000.
<PAGE>
PART I.
INFORMATION REQUIRED IN THE 10(a) PROSPECTUS
On June 15, 2000, PSINet Inc. acquired Metamor Worldwide, Inc.
("Metamor"). PSINet entered into a definitive agreement to acquire Metamor on
March 21, 2000. According to the terms of the merger agreement, PSINet Shelf IV
Inc., a wholly owned subsidiary of PSINet, was merged with and into Metamor and
Metamor's name was changed to "PSINet Consulting Solutions, Inc." The
shareholders of PSINet Inc. and the stockholders of Metamor approved the merger
on June 15, 2000.
This registration statement relates to the Long-Term Incentive Plan, as
amended and restated, and the Employee Stock Purchase Plan, as amended
(collectively, the "Plans"), which were originally sponsored by Metamor. Since
1995 and 1996, respectively, Metamor has made grants to its employees of options
pursuant to the Plans, some of which remain outstanding. Metamor previously
filed registration statements on Form S-8 covering the shares of its common
stock issuable pursuant to the Plans.
Pursuant to the terms of the merger agreement, PSINet adopted
sponsorship of the Plans as of the time of the merger on June 15, 2000. At that
time, the options outstanding under the Plans were automatically modified such
that each outstanding option now represents the right to purchase 0.9 shares of
common stock, par value $.01 per share, of PSINet. Thus, the 4,340,116 options
issued by Metamor and outstanding under the Long-Term Incentive Plan are now
options to acquire 3,906,104 shares of PSINet common stock and the 350,000
options issued by Metamor and outstanding under the Employee Stock Purchase Plan
are now options to acquire 315,000 shares of PSINet common stock, in each case
subject to certain adjustments described in the Plans. This registration
statement on Form S-8 relates to shares of PSINet common stock that may be
issued upon the exercise of currently outstanding options granted under the
Plans. No further options will be issued under the Plans.
Additional information required to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with Rule
428 of the Securities and Exchange Commission issued unde the Securities Act of
1933, as amended and the Note to Part I of Form S-8.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents that have been filed by PSINet with the
Securities and Exchange Commission are incorporated herein by reference:
(1) Annual report on Form 10-K for the fiscal year ended December 31,
1999. This report contains:
o audited consolidated balance sheets for PSINet and its
subsidiaries as of December 31, 1999 and 1998; and
o audited consolidated statements of operations, of changes in
shareholders' equity and of cash flows for the years ended
December 31, 1999, 1998 and 1997.
(2) Quarterly report on Form 10-Q for the quarter ended March 31,
2000.
(3) Current reports on Form 8-K dated:
o January 10, 2000
o January 16, 2000
o January 24, 2000
o January 27, 2000
o January 26, 2000
o February 1, 2000
o March 22, 2000
o June 5, 2000
o June 13, 2000
o June 15, 2000
(4) The Joint Proxy Statement/Prospectus contained in Amendment No. 1
to the Registration Statement on Form S-4 (registration no.
333-34802) filed with the Securities and Exchange Commission on
May 12, 2000.
We are also incorporating by reference in this registration statement
all reports and other documents that we file pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 subsequent to the date of
this registration statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining. These reports and documents will be
incorporated by reference in and considered to be a part of this registration
statement as of the date of filing of such reports and documents.
Any statement contained in this registration statement or in a document
which is incorporated by reference herein will be modified or superseded for
purposes of this registration statement to the extent that a statement in any
document that we file after the date of this registration statement that also is
incorporated by reference herein modifies or supersedes such prior statement.
Any such statement so
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modified or superseded will not, except as so modified or superseded, constitute
a part of this registration statement.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Not applicable.
ITEM 6. Indemnification of Officers and Directors.
The New York Business Corporation Law (the "BCL") provides that if a
derivative action is brought against an officer or director of a corporation,
the corporation may indemnify him or her against amounts paid in settlement and
reasonable expenses, including attorneys fees, incurred by him or her, in
connection with the defense or settlement of such action, if such officer or
director acted in good faith for a purpose which he or she reasonably believed
to be in the best interests of the corporation, except that no indemnification
shall be made without court approval in respect of a threatened action, or a
pending action settled or otherwise disposed of, or in respect of any matter as
to which such officer or director has been found liable to the corporation. In a
nonderivative action or threatened action, the BCL provides that a corporation
may indemnify an officer or director against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees, incurred by him
or her in defending such action if such officer or director acted in good faith
for a purpose which he or she reasonably believed to be in the best interests of
the corporation.
Under the BCL, an officer or director who is successful, either in a
derivative or nonderivative action, is entitled to indemnification as outlined
above. Under any other circumstances, such officer or director may be
indemnified only if certain conditions specified in the BCL are met. The
indemnification provisions of the BCL are not exclusive of any other rights to
which an officer or director seeking indemnification may be entitled pursuant to
the provisions of the certificate of incorporation or by-laws of a corporation
or, when authorized by such certificate of incorporation or by-laws, pursuant to
a shareholders' resolution, a directors' resolution or an agreement providing
for such indemnification.
The above is a general summary of certain provisions of the BCL and is
subject, in all cases, to the specific and detailed provisions of Sections
721-725 of the BCL.
Article V, Section 1 of our By-laws contains provisions requiring
indemnification by us of our officers and directors against certain liabilities
and expenses which they may incur as our officers and directors or of certain
other entities in accordance with Sections 722-723 of the BCL.
Section 726 of the BCL also contains provisions authorizing a
corporation to obtain insurance on behalf of any officer or director against
liabilities, whether or not the corporation would have the power to indemnify
against such liabilities. Article V, Section 5 of our By-laws indicates that we
may, but need not, maintain insurance insuring us or persons entitled to
indemnification under Section 1 of Article V of our By-laws for liabilities
against which they are entitled to indemnification under Article V of our
By-laws or insuring such persons for liabilities against which they are not
entitled to indemnification under Article V of our By-laws.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
<PAGE>
ITEM 8. Exhibits
See Exhibit Index.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration 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 that remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of
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the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Ashburn, Commonwealth of Virginia on June 15, 2000.
PSINET INC.
By: /s/ William L. Schrader
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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 William L. Schrader, Harold S.
Wills, David N. Kunkel 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, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
/s/ William L. Schrader Chairman, Chief Executive Officer
------------------------- and Director (Principal June 15, 2000
William L. Schrader Executive Officer)
/s/ Harold S. Wills President, Chief Operating
------------------------- Officer and Director June 15, 2000
Harold S. Wills
/s/ David N. Kunkel Vice Chairman, Executive Vice
------------------------- President and Director June 15, 2000
David N. Kunkel
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/s/ Jorge R. Forgues Vice President and Acting Chief
------------------------- Financial Officer
Jorge R. Forgues (Principal Financial June 15, 2000
and Accounting Officer)
/s/ William H. Baumer
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William H. Baumer Director June 15, 2000
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Ralph J. Swett Director June __, 2000
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Ian P. Sharp Director June __, 2000
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description Location
4.1 Long-Term Incentive Plan Incorporated by reference to the
Registration Statement on Form S-8
of Metamor Worldwide, Inc. filed
with the Securities and Exchange
Commission on December 12, 1995
4.2 Employee Stock Purchase Plan Incorporated by reference to the
Registration Statement on Form S-8
of Metamor Worldwide, Inc. filed
with the Securities and Exchange
Commission on April 1, 1996
4.3 Amendment to Long-Term Incorporated by reference to
Incentive Plan Appendix B to the Proxy Statement
on Schedule 14A of Metamor
Worldwide, Inc. filed with the
Securities and Exchange Commission
on April 13, 1998
4.4 Amendment to Employee Stock Incorporated by reference to
Purchase Plan Appendix A to the Proxy Statement
on Schedule 14A of Metamor
Worldwide, Inc. filed with the
Securities and Exchange Commission
on April 13, 1998
5.1 Opinion of Nixon Peabody LLP Filed herewith
23.1 Consent of Nixon Peabody LLP Contained in opinion filed as
Exhibit 5.1 to this Registration
Statement
23.2 Consent of Filed herewith
PricewaterhouseCoopers LLP
24 Power of Attorney Included on the signature page of
this registration statement.
