AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 15, 2003
REGISTRATION NO. 333-________
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
NAVISITE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------
DELAWARE 52-2137343
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
400 MINUTEMAN ROAD, ANDOVER, MASSACHUSETTS 01810
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
AMENDED AND RESTATED 2003 STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
----------
KENNETH DRAKE
GENERAL COUNSEL AND SECRETARY
NAVISITE, INC.
400 MINUTEMAN ROAD
ANDOVER, MASSACHUSETTS 01810
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(978) 682-8300
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------
COPIES TO:
THOMAS B. ROSEDALE, ESQ.
BROWNE ROSEDALE & LANOUETTE LLP
31 ST. JAMES AVENUE, SUITE 830
BOSTON, MASSACHUSETTS 02116
(617) 399-6931
----------
CALCULATION OF REGISTRATION FEE
================================================================================================================
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE PRICE FEE
----------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 2,170,000 shares $ 2.55(1) $ 5,533,500(1) $ 447.67
107,000 shares $ 3.53(2) $ 377,710(2) $ 30.56
64,000 shares $ 4.97(3) $ 318,080(3) $ 25.74
20,000 shares $ 8.40(4) $ 168,000(4) $ 13.60
1,439,000 shares $ 7.775(5) $11,188,225(5) $ 905.13
Total: 3,800,000 shares $17,585,515 $1,422.70
================================================================================================================
(1) All of such shares are issuable upon the exercise of outstanding options to
purchase an aggregate of 2,170,000 shares at an exercise price of $2.55 per
share. The aggregate offering price and registration statement fee have
been computed upon the basis of the price at which the options may be
exercised, pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended.
(2) All of such shares are issuable upon the exercise of outstanding options to
purchase an aggregate of 107,000 shares at an exercise price of $3.53 per
share. The aggregate offering price and registration statement fee have
been computed upon the basis of the price at which the options may be
exercised, pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended.
(3) All of such shares are issuable upon the exercise of outstanding options to
purchase an aggregate of 64,000 shares at an exercise price of $4.97 per
share. The aggregate offering price and registration statement fee have
been computed upon the basis of the price at which the options may be
exercised, pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended.
(4) All of such shares are issuable upon the exercise of outstanding options to
purchase an aggregate of 20,000 shares at an exercise price of $8.40 per
share. The aggregate offering price and registration statement fee have
been computed upon the basis of the price at which the options may be
exercised, pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended.
(5) Estimated solely for the purpose of calculating the registration fee, and
based on the average of the high and low prices of the Common Stock on the
Nasdaq SmallCap Market on December 8, 2003 in accordance with Rules
457(c) and 457(h) under the Securities Act of 1933, as amended.
================================================================================
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Registrant's Amended and Restated 2003 Stock
Incentive Plan, pursuant to Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Sections 13(a)
or 15(d) of the Exchange Act, or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited
financial statements for the Registrant's latest fiscal year for which
such statements have been filed.
(2) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01 par value
per share (the "Common Stock"), contained in a registration statement
filed under the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement 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 statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to 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 Directors and Officers
-----------------------------------------
Section 145 of the Delaware General Corporation Law grants the
Registrant the power to indemnify each 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
by reason of the fact that he or she is or was a director, officer, employee or
agent of the Registrant, or is or was serving at the request of the Registrant
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 by him or her in connection
with such action, suit or proceeding if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Registrant, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful;
provided, however, no indemnification shall be made in connection with any
proceeding brought by or in the right of the Registrant where the person
involved is adjudged to be liable to the Registrant, except to the extent
approved by a court.
The Registrant's Amended and Restated Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), provides that a director or
officer of the Registrant (a) shall be indemnified by the Registrant against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement incurred in connection with any litigation or other legal proceeding
(other than an action by or in the right of the Registrant) brought against him
by virtue of his position as a director or officer of the Registrant if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Registrant, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful and (b) shall be indemnified by the Registrant against all expenses
(including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Registrant brought against
him by virtue of his position as a director or officer of the Registrant if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant, except that no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the Registrant, unless and only to the extent that the
Court of Chancery of Delaware determines that, despite such adjudication but in
view of all of the circumstances, he is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, he is required to be
indemnified by the Registrant against all expenses (including attorneys' fees)
incurred in connection therewith. Expenses shall be advanced to a director or
officer at his request, unless it is determined that he did not act in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Registrant, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful;
provided that he undertakes to repay the amount advanced if it is ultimately
determined that he is not entitled to indemnification for such expenses.
Article NINTH provides that the Registrant shall have the power to
purchase and maintain insurance to protect itself and any person who is or was a
director, officer, employee, or agent of the Registrant, or another corporation,
partnership, joint venture, trust, or other enterprise, against any expense,
liability or loss incurred by such person in any such capacity, or arising out
of his or her status as such, whether or not the Registrant would have the power
to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law. In addition, the Registrant's Certificate of
Incorporation provides that the indemnification provided therein is not
exclusive and provides that the Registrant may enter into agreements with
officers and directors providing for indemnification rights and procedures
different from those set forth in the Registrant's Certificate of Incorporation.
As a condition precedent to the right of indemnification, the director
or officer must give the Registrant notice of the action for which indemnity is
sought and the Registrant has the right to participate in such action or assume
the defense thereof.
The Registrant has obtained directors' and officers' liability
insurance which would insure the directors and officers of the Registrant
against damages arising from certain kinds of claims which might be made against
them based upon their negligent acts or omissions while acting in their
respective capacities as directors or officers. The Registrant has entered into
agreements with each of its directors and executive officers affirming the
Registrant's obligation to indemnify them to the fullest extent permitted by law
and providing various other protections.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law,
Article EIGHTH of the Certificate of Incorporation provides that no director of
the Registrant shall be personally liable for any monetary damages for breach of
fiduciary duty as a director, except to the extent that the Delaware General
Corporation Law prohibits the elimination or limitation of liability of
directors for breach of fiduciary duty.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings
------------
1. 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; and
(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 (i) and (ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Sections 13 or 15(d) of the
Exchange Act that are incorporated by reference in the 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.
2. 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 Sections 13(a) or 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 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.
3. 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
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Andover, Commonwealth of Massachusetts on December
15, 2003.
NaviSite, Inc.
By: /s/ Arthur P. Becker
-------------------------------------
Arthur P. Becker
Chief Executive Officer and President
POWER OF ATTORNEY
We, the undersigned officers and directors of NaviSite, Inc., hereby
severally constitute Arthur P. Becker, James W. Pluntze and Kenneth Drake, and
each of them singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the capacities indicated
below, the Registration Statement on Form S-8 filed herewith and any and all
subsequent amendments to said Registration Statement, and generally to do all
such things in our names and in our behalf in our capacities as officers and
directors to enable NaviSite, Inc. to comply with all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on December 15, 2003.
Signature Title
--------- -----
/s/ Andrew Ruhan Chairman of the Board of Directors
------------------------------------
Andrew Ruhan
/s/ Arthur P. Becker Chief Executive Officer, President
------------------------------------ and Director (Principal Executive
Arthur P. Becker Officer)
/s/ James W. Pluntze Chief Financial Officer (Principal
------------------------------------ Financial and Accounting Officer)
James W. Pluntze
/s/ Gabriel Ruhan Chief Operating Officer and Director
------------------------------------
Gabriel Ruhan
/s/ James H. Dennedy Director
------------------------------------
James H. Dennedy
/s/ Thomas R. Evans Director
------------------------------------
Thomas R. Evans
/s/ Larry W. Schwartz Director
------------------------------------
Larry W. Schwartz
EXHIBIT INDEX
EXHIBIT DESCRIPTION
------- -----------
4.1 Amended and Restated Certificate of Incorporation is incorporated
herein by reference to Exhibit 3.1 to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended October 31, 1999
(File No. 000-27597)
4.2 Certificate of Amendment of Amended and Restated Certificate of
Incorporation, dated as of January 4, 2003, is incorporated herein
by reference to Exhibit 3.1 to the Registrant's Quarterly Report
on Form 10-Q for the fiscal quarter ended January 31, 2003 (File
No. 000-27597)
4.3 Certificate of Amendment of Amended and Restated Certificate of
Incorporation, dated as of January 7, 2003, is incorporated herein
by reference to Exhibit 3.2 to the Registrant's Quarterly Report
on Form 10-Q for the fiscal quarter ended January 31, 2003 (File
No. 000-27597)
4.4 Amended and Restated By-Laws is incorporated herein by reference
to Exhibit 3.2 to the Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended October 31, 1999 (File No. 000-27597)
4.5 Specimen Certificate of Common Stock, $.01 par value per share, of
the Registrant is incorporated herein by reference to the Exhibit
4.1 to the Registrant's Registration Statement on Form S-1 (File
No. 333-83501)
5 Opinion of Browne Rosedale & Lanouette LLP
23.1 Consent of Browne Rosedale & Lanouette LLP (included in Exhibit 5)
23.2 Consent of KPMG LLP
24 Power of Attorney (included in the signature pages of this
Registration Statement)
99.1 Amended and Restated 2003 Stock Incentive Plan is incorporated
herein by reference to the Registrant's Definitive Schedule 14A
filed November 12, 2003 (File No. 000-27597)