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As filed with the Securities and Exchange Commission on October 23, 2000
Registration No. 333-47858
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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USINTERNETWORKING, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 52-2078325
(State or Other Jurisdiction of (IRS Employer Identification
Incorporation or Organization) Number)
One USi Plaza
Annapolis, Maryland 21401-7478
(410) 897-4400
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
William T. Price, Esq.
Vice President, Secretary and General Counsel
One USi Plaza
Annapolis, Maryland 21401-7478
(410) 897-4400
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service) with a copy to:
John D. Watson, Jr., Esq.
Latham & Watkins
1001 Pennsylvania Avenue, N.W., Suite 1300
Washington, D.C. 20004
(202) 637-2200
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Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement as
determined by market conditions.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 (the "Securities Act"), other than securities offered
only in connection with dividend or interest reinvestment plans, please check
the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please 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(c) 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. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
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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 THAT 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.
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Explanatory Note
This Amendment No. 1 to the Form S-3 Registration Statement (Registration No.
333-47858) of USinternetworking, Inc. is being filed solely to include an
Exhibit to the Registration Statement. Accordingly, Part 1, the form of
prospectus, has been omitted from this filing.
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INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is an estimate of the amount of fees and expenses to
be incurred in connection with the issuance and distribution of the Notes and
common stock registered under this prospectus:
SEC Registration Fee $ 39,600
Printing and Mailing Costs 10,000
Legal Fees and Expenses 50,000
Accounting Fees and Expenses 10,000
Miscellaneous expenses 5,000
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Total $ 114,600
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ITEM 15. LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") permits a Delaware corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise, against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit, or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful.
In the case of an action by or in the right of the corporation, Section 145
permits the corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interest of the corporation. No indemnification may be made in respect of any
claim, issue, or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
To the extent that a present or former director or officer of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in the preceding two paragraphs, Section 145 requires
that such person be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
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Section 145 provides that expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding may be paid the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in Section 145.
The Company's Certificate provides that an officer or director of the
Company will not be personally liable to the Company or its stockholders for
monetary damages for any breach of his fiduciary duty as an officer or director,
except in certain cases where liability is mandated by the DGCL. The provision
has no effect on any non-monetary remedies that may be available to the Company
or its stockholders, nor does it relieve the Company or its officers or
directors from compliance with federal or state securities laws. The Certificate
also generally provides that the Company shall indemnify, to the fullest extent
permitted by law, any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit, investigation,
administrative hearing or any other proceeding (each, a "Proceeding") by reason
of the fact that he is or was a director or officer of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another entity, against expenses incurred by him in connection with such
Proceeding. An officer or director shall not be entitled to indemnification by
the Company if (i) the officer or director did not act in good faith and in a
manner reasonably believed to be in, or not opposed to, the best interests of
the Company, or (ii) with respect to any criminal action or proceeding, the
officer or director had reasonable cause to believe his conduct was unlawful.
The Bylaws of the Company provide that it shall indemnify any person who is
made a party to any threatened, pending or completed action, suit or proceeding
by reason of the fact that he or she is or was a director or officer of the
Company, and may indemnify any employee or agent of the Company in such
circumstances, against expenses, including attorneys fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding. No indemnification may be
provided for any person who shall have been finally adjudicated not to have
acted honestly or in the reasonable belief that his or her action was in or not
opposed to the best interests of the Company or who had reasonable cause to
believe that his or her conduct was unlawful. Indemnification must be provided
to any director, officer, employee or agent of the Company to the extent such
person has been successful, on the merits or otherwise, in defense of any action
or claim described above. Any indemnification under this provision of the
Bylaws, unless required under the Bylaws or ordered by a court, can be made only
as authorized in each specific case upon a determination by a majority of
disinterested directors or by independent legal counsel or by the stockholders
that such indemnification is appropriate under the standard set forth in the
preceding sentence.
ITEM 16. EXHIBITS
(a) Exhibits
EXHIBIT
NO. DESCRIPTION
------- -----------
4.1(a) Second Amended and Restated Certificate of Incorporation of
the Company.
4.2(a) Amended and Restated Bylaws of the Company.
4.3(c) First Amendment to the Company's Second Amended and Restated
Certificate of Incorporation.
4.4(b) Specimen Certificate for shares of Common Stock, $.001 par
value, of the Company.
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5.1(#) Opinion of Latham & Watkins with respect to the validity of
the Common Stock.
23.1(#) Consent of Ernst & Young LLP, independent auditors
(regarding the Company's financial statements).
23.2(*) Consent of Bassan & Associados S.C., independent
auditors (regarding IIT financial statements).
23.3(#) Consent of Ernst & Young LLP, independent auditors
(regarding IIT financial statements).
23.5(#) Consent of Latham & Watkins (included in Exhibit 5.1).
24.1(#) Powers of Attorney (included on signature page herein and as
previously filed).
* Filed herewith.
# Previously filed.
(a) Incorporated by reference to the Company's Registration Statement on Form
S-3, as amended (Reg. No. 333-93299).
(b) Incorporated by reference to the Company's Registration Statement on Form
S-1, as amended (Reg. No. 333-70717)
(c) Incorporated by reference to Company's Registration's Statement on Form
S-1, as amended (Reg. No. 333-95543).
(b) Schedules
All schedules have been omitted because they are not required or because
the required information is given in the Consolidated Financial Statements or
Notes thereto.
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ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
- 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. However, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 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 about the plan of
distribution not previously disclosed in this registration
statement or any material change to this information in this
registration statement.
However, subparagraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs
is contained in the 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 this registration statement.
- 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
herein, and the offering of such Securities at that time shall be
deemed to be the initial bona fide offering thereof.
- To remove from registration by means of a post-effective amendment any
of the Securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby further undertakes that, for
the purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this 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.
As far as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant under the provisions of this registration statement,
or otherwise (other than insurance), the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the Securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in such Act and
will be governed by the final adjudication of such issue.
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Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3, and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Annapolis, State of Maryland on October 23, 2000.
USINTERNETWORKING, INC.
By: /s/ WILLIAM T. PRICE
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WIlliam T. Price
Vice President, Secretary and General Counsel
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Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed below on October 23, 2000 by the
following persons in the capacities indicated.
SIGNATURE TITLE
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* Chairman of the Board
- ---------------------------
Christopher R. McCleary
* Chief Executive Officer and Director
- ----------------------------
Andrew A. Stern
* President -E-Commerce Business Unit and Director
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Stephen E. McManus
* Senior Vice President and Chief Financial Officer
- ----------------------------
Mark J. McEneaney
Director
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R. Dean Meiszer
Director
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Benjamin Diesbach
* Director
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Ray A. Rothrock
* Director
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Frank A. Adams
* Director
- ------------------------
William F. Earthman
* Director
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John H. Wyant
Director
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Joseph R. Zell
* Director
- ---------------------
Michael C. Brooks
Director
- ---------------------
David J. Poulin
Director
- ---------------------
Cathy M. Brienza
Director
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Kenneth E. Sichau
*By: /s/ WILLIAM T. PRICE
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WILLIAM T. PRICE
ATTORNEY-IN-FACT
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INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
------- -----------
4.1(a) Second Amended and Restated Certificate of Incorporation of
the Company.
4.2(a) Amended and Restated Bylaws of the Company.
4.3(c) First Amendment to the Company's Second Amended and Restated
Certificate of Incorporation.
4.4(b) Specimen Certificate for shares of Common Stock, $.001 par
value, of the Company.
5.1(#) Opinion of Latham & Watkins with respect to the validity of
the Common Stock.
23.1(#) Consent of Ernst & Young LLP, independent auditors
(regarding the Company's financial statements).
23.2(*) Consent of Bassan & Associados S.C., independent
auditors (regarding IIT financial statements).
23.3(#) Consent of Ernst & Young LLP, independent auditors
(regarding IIT financial statements).
23.5(#) Consent of Latham & Watkins (included in Exhibit 5.1).
24.1(#) Powers of Attorney (included on signature page herein and as
previously filed).
* Filed herewith.
# Previously filed.
(a) Incorporated by reference to the Company's Registration Statement on Form
S-3, as amended (Reg. No. 333-93299).
(b) Incorporated by reference to the Company's Registration Statement on Form
S-1, as amended (Reg. No. 333-70717)
(c) Incorporated by reference to Company's Registration's Statement on Form
S-1, as amended (Reg. No. 333-95543).