As filed with the Securities and Exchange Commission on August 31, 2001
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIA NET.WORKS, INC.
(Exact name of registrant as specified in its charter)
Delaware 84-1412512
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
12100 Sunset Hills Road, Suite 110
Reston, VA 20190
(Address of principal executive offices) (Zip code)
Amended and Restated Key Employee Equity Plan
(Full title of the plans)
Matt S. Nydell
Vice President, General Counsel and Secretary
VIA NET.WORKS, INC.
12100 Sunset Hills Road, Suite 110
Reston, VA 20190
(Name and address of agent for service)
(703) 464-0300
(Telephone number, including area code, of agent for service)
Copy to:
Suzanne A. Barr, Esq.
HOGAN & HARTSON L.L.P.
555 Thirteenth Street, N.W.
Washington, DC 20004-1109
(202) 637-5600
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed maximum Proposed maximum
Amount to be offering price aggregate offering Amount of
Title of securities to be registered registered per share (1) price (1) registration fee
- --------------------------------------------------------- -------------- ---------------- ------------------ -----------------
Common stock ($.001 par value) issuable under the Amended
and Restated Key Employee Equity Plan 214,517 $0.88 $188,774.96 $ 47.19
====================================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and the aggregate offering price
are based upon the average of the high and low prices of the registrant's common
stock as reported on the Nasdaq National Market on August 29, 2001 in accordance
with Rule 457(c) under the Securities Act for shares issuable pursuant to the
Key Employee Equity Plan and not subject to outstanding options.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees participating in the Amended and Restated Key
Employee Equity Plan (the "Plan") as specified by Rule 428(b)(1) promulgated
under the Securities Act of 1933. In accordance with the instructions to Part I
of Form S-8, such documents will not be filed with the Securities and Exchange
Commission either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424 promulgated under the Securities
Act. These documents and the documents incorporated by reference pursuant to
Item 3 of Part II of this registration statement, taken together, constitute the
prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
VIA NET.WORKS, Inc. ("VIA") hereby incorporates by reference into this
registration statement the following documents filed with the Commission:
(a) VIA's Annual Report on Form 10-K for the year ended December 31,
2000 (filed on March 27, 2001), as amended by Form 10-K/A (filed
on August 17, 2001);
(b) All reports filed by VIA with the Commission under Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since December
31, 2000; and
(c) The description of VIA's common stock, $.001 par value per share,
incorporated by reference into VIA's registration statement on
Form 8-A filed with the Commission on February 8, 2000 pursuant
to Section 12 of the Exchange Act, which incorporates by
reference the description of VIA's common stock from VIA's
registration statement on Form S-1 (File No. 333-91615) filed
with the Commission on February 9, 2000.
All documents subsequently filed by VIA pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act (except, with respect to Current
Reports on Form 8-K, any information furnished under Item 9), prior to the
filing of a post-effective amendment that indicates that all securities offered
hereby have been sold or which deregisters all such securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such prior statement. The documents required to be so
modified or superseded shall not be deemed to constitute a part of this
registration statement, except as so modified or superseded.
To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in such
proxy statement which is not, pursuant to the Commission's rules, deemed to be
"filed" with the Commission or subject to the liabilities of Section 18 of the
Exchange Act.
Item 4. Description of Securities.
A description of VIA's common stock is incorporated by reference under
Item 3.
1
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification Of Directors And Officers
VIA's certificate of incorporation and bylaws provide for the
indemnification of VIA's directors and officers to the fullest extent authorized
by, and subject to the conditions set forth in, the General Corporation Law of
the State of Delaware, or DGCL, except that VIA will indemnify a director or
officer in connection with a proceeding (or part thereof) initiated by the
person only if the proceeding (or part thereof) was authorized by VIA's Board of
Directors. The indemnification provided under the certificate of incorporation
and bylaws includes the right to be paid by VIA the expenses (including
attorneys' fees) in advance of any proceeding for which indemnification may be
had in advance of its final disposition, provided that the payment of such
expenses (including attorneys' fees) incurred by a director or officer in
advance of the final disposition of a proceeding may be made only upon delivery
to VIA of an undertaking by or on behalf of the director or officer to repay all
amounts so paid in advance if it is ultimately determined that the director or
officer is not entitled to be indemnified. According to the bylaws, if a claim
for indemnification is not paid by VIA within 60 days after a written claim has
been received by VIA, the claimant may at any time thereafter bring an action
against VIA to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant will be entitled to be paid also the expense of
prosecuting the action.
As permitted by the DGCL, VIA's certificate of incorporation provides
that directors of VIA shall not be liable to VIA or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to VIA or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL, relating to unlawful payment of dividends or unlawful stock purchase
or redemption or (iv) for any transaction from which the director derived an
improper personal benefit. As a result of this provision, VIA and its
stockholders may be unable to obtain monetary damages from a director for breach
of his or her duty of care.
Under the bylaws, VIA has the power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
VIA, or is or was serving at the request of VIA as a director, officer,
employee, partner (limited or general) or agent of another corporation or of a
partnership, joint venture, limited liability company, trust or other
enterprise, against any liability asserted against the person or incurred by the
person in any such capacity, or arising out of the person's status as such, and
related expenses, whether or not VIA would have the power to indemnify the
person against such liability under the provisions of the DGCL. VIA has
purchased director and officer liability insurance on behalf of its directors
and officers.
Additionally, VIA has entered into indemnification agreements with
certain of its directors and officers, which may, in some cases, be broader than
the specific indemnification provisions contained under applicable law. The
indemnification agreements may require VIA, among other things, to indemnify
such officers and directors against liabilities that arise by reason of their
status or service as its directors or officers, to reimburse or advance the
expenses they may incur as a result of threatened claims or proceedings brought
against them, and to cover them under VIA's directors' and officers' liability
insurance policies to the maximum extent that insurance coverage is maintained.
Item 7. Exemption from Registration Claimed.
Not applicable.
2
Item 8. Exhibits.
Exhibit
Number Description
- ------ -----------
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 The consent of Hogan & Hartson L.L.P. (included as part of Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of the registration statement).
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the registration statement. Notwithstanding
the foregoing, any increase or decrease in
volume of securities offered (if the total
dollar value of securities offered would not
exceed that which was registered) and any
deviation from the low or high and of the
estimated maximum offering range may be
reflected in the form of the prospectus filed
with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and
price represent no more than 20 percent change
in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information 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, 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 Commission by
the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
3
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that, in the opinion of the Commission, such
indemnification is against public policy as expressed in the Securities Act
and therefore is unenforceable. In the event that a claim for indemnification
against such liabilities (other than for 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 of whether such indemnification by it
is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of the issue.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, VIA
NET.WORKS, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the County of Fairfax, Commonwealth of Virginia, as of
August 31, 2001.
VIA NET.WORKS, INC.
By: /s/ David M. D'Ottavio
-----------------------------------
David M. D'Ottavio
Chief Executive Officer and Chairman of the
Board of Directors
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints David
M. D'Ottavio and Catherine A. Graham, and each of them, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, from such person and in each person's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement or any registration statement
relating to this registration statement under Rule 462 under the Securities Act
of 1933 and to file the same, with all exhibits thereto and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or his, her or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated as of August 31, 2001.
Signature Title
--------- -----
/s/ David M. D'Ottavio Chief Executive Officer and Chairman of the Board of Directors
- -------------------------------------------- (Principal Executive Officer)
David M. D'Ottavio
/s/ Michael J. Simmons President
- --------------------------------------------
Michael J. Simmons
/s/ Catherine A. Graham Vice President, Chief Financial Officer and Treasurer
- -------------------------------------------- (Principal Financial and Accounting Officer)
Catherine A. Graham
/s/ William A. Johnston Director
- --------------------------------------------
William A. Johnston
5
/s/ Gabriel Battista Director
- --------------------------------------------
Gabriel Battista
/s/ Edward D. Breen Director
- --------------------------------------------
Edward D. Breen
/s/ Stephen J. Eley Director
- --------------------------------------------
Stephen J. Eley
/s/ William J. Elsner Director
- --------------------------------------------
William J. Elsner
/s/ Adam Goldman Director
- --------------------------------------------
Adam Goldman
/s/ Mark J. Masiello Director
- --------------------------------------------
Mark J. Masiello
/s/ John G. Puente Director
- --------------------------------------------
John G. Puente
/s/ Erik M. Torgerson Director
- --------------------------------------------
Erik M. Torgerson
6
Index to Exhibits
Exhibit
Number Description
- ------ -----------
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 The consent of Hogan & Hartson L.L.P. (included as part of Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of the registration statement).
7