1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 6, 1999
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 6
TO
FORM S-1
INTERLIANT, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 7379 13-397-8980
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
TWO MANHATTANVILLE ROAD
PURCHASE, NEW YORK 10577
(914) 640-9000
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
BRADLEY A. FELD
CO-CHAIRMAN OF THE BOARD
INTERLIANT, INC.
TWO MANHATTANVILLE ROAD
PURCHASE, NEW YORK 10577
(914) 640-9000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
E. ANN GILL, ESQ. STEVEN BERSON, ESQ.
JONATHAN L. FREEDMAN, ESQ. WILSON SONSINI GOODRICH & ROSATI,
DEWEY BALLANTINE LLP PROFESSIONAL CORPORATION
1301 AVENUE OF THE AMERICAS 650 PAGE MILL ROAD
NEW YORK, NEW YORK 10019 PALO ALTO, CALIFORNIA 94304-1050
(212) 259-8000 (650) 493-9300
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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, check the following box: [ ]
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 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. [ ] ________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE(3)
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
($.01 par value)............ 8,050,000 $11.00 $88,550,000 $24,617
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes 1,050,000 shares that the Underwriters have the option to purchase
to cover any over-allotments.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Previously paid.
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2
EXPLANATORY NOTE
THIS REGISTRATION STATEMENT CONTAINS TWO SEPARATE PROSPECTUSES. THE FIRST
PROSPECTUS RELATES TO A PUBLIC OFFERING OF SHARES OF COMMON STOCK OF INTERLIANT,
INC. IN THE UNITED STATES AND CANADA (THE "U.S. OFFERING"). THE SECOND
PROSPECTUS RELATES TO A CONCURRENT OFFERING OF COMMON STOCK OUTSIDE THE UNITED
STATES AND CANADA (THE "INTERNATIONAL OFFERING"). THE PROSPECTUSES FOR THE U.S.
OFFERING AND THE INTERNATIONAL OFFERING WILL BE IDENTICAL IN ALL RESPECTS, OTHER
THAN THE FRONT COVER PAGE, THE "UNDERWRITING" SECTION AND THE BACK COVER PAGE
RELATING TO THE INTERNATIONAL OFFERING. SUCH ALTERNATE PAGES APPEAR IN THIS
REGISTRATION STATEMENT IMMEDIATELY FOLLOWING THE COMPLETE PROSPECTUS FOR THE
U.S. OFFERING.
3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemized statement of the estimated amounts of all
expenses payable by the Registrant in connection with the registration of the
common stock offered hereby, other than underwriting discounts and commissions:
<TABLE>
<S> <C>
Registration Fee -- Securities and Exchange Commission...... $ 21,375
NASD Filing Fee............................................. 9,125
Blue Sky fees and expenses.................................. 1,000
Accountants' fees and expenses.............................. 300,000
Legal fees and expenses..................................... 550,000
Printing and engraving expenses............................. 500,000
Transfer agent and registrar fees........................... 5,000
Miscellaneous............................................... 13,500
----------
Total............................................. $1,400,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a Delaware corporation may 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 he 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, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding 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
corporation, and, with respect to any criminal action or proceeding, had no
cause to believe his conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
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 acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted under similar standards, except that 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 in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of the DGCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue, or matter therein, he shall be indemnified against any expenses
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director,
officer, employee or agent of the corporation against any liability asserted
against him or incurred by him in any such capacity or arising out of his status
as such whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
II-1
4
Section 102(b)(7) of the DGCL provides that a corporation in its original
certificate of incorporation or an amendment thereto validly approved by
stockholders may eliminate or limit personal liability of members of its board
of directors or governing body for breach of a director's fiduciary duty.
However, no such provision may eliminate or limit the liability of a director
for breaching his duty of loyalty, failing to act on good faith, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which was illegal or obtaining an improper personal
benefit. A provision of this type has no effect on the availability of equitable
remedies, such as injunction or rescission, for breach of fiduciary duty.
Interliant's Restated Certificate of Incorporation contains such a provision.
Interliant's Certificate of Incorporation and By-Laws provide that
Interliant shall indemnify officers and directors and, to the extent permitted
by the Board of Directors, employees and agents of Interliant, to the full
extent permitted by and in the manner permissible under the laws of the State of
Delaware. In addition, the By-Laws permit the Board of Directors to authorize
Interliant to purchase and maintain insurance against any liability asserted
against any director, officer, employee or agent of Interliant arising out of
his capacity as such.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
In the three years preceding the filing of this Registration Statement,
Interliant has issued securities that were not registered under the Securities
Act of 1933, as amended (the "Securities Act") to a limited number of persons,
as described below.
Interliant believes that the transactions described below were exempt from
registration under the Securities Act pursuant to Section 4(2) of the Securities
Act, or Regulation D promulgated thereunder, as transactions by an issuer not
involving public offering, or pursuant to Rule 701 promulgated under Section
3(b) of the Securities Act, as transactions pursuant to compensatory benefit
plans and contracts relating to compensation. The recipients of securities in
each such transaction represented that they were acquiring the securities for
investment only and not with a view to or for sale in connection with any
distribution thereof and appropriate legends were affixed to the share
certificates issued in such transactions. All recipients had adequate access,
through their relationships with Interliant, to information about Interliant, or
were given an adequate opportunity to review information about Interliant.
The following figures give effect to a three-for-one stock split of the
Common Stock of Interliant in July 1998.
(A) ISSUANCE OF CAPITAL STOCK.
Pursuant to a Stock Subscription Agreement dated December 8, 1997 between
Interliant and Web Hosting Organization LLC ("WEB"), Interliant issued to WEB,
for a purchase price of $5,000,000, 3,000,000 shares of common stock of
Interliant, $.01 par value and also granted WEB an option to purchase up to an
additional 6,600,000 shares of common stock at an exercise price of $1.67 per
share (the "Option").
On April 7, 1998, in connection with the acquisition of substantially all
of the assets of Clever Computers, Inc., ("Clever"), and as consideration for
entering into an employment agreement with Interliant, Interliant issued 150,000
shares of common stock to the former president and founder of Clever, Steven C.
Dabbs.
On July 10, 1998, Interliant issued 9,000 shares of common stock to Jab
Web, Inc. (formerly Tri-Star Web Creations, Inc.), as part of the purchase price
for substantially all of the assets of Tri-Star Web Creations, Inc.
On July 10, 1998, Interliant issued to WEB, for a purchase price of
$11,000,000, 6,600,000 shares of common stock.
On July 10, 1998, Interliant issued 115,707 shares of common stock to All
Information Systems, Inc., as part of the purchase price for substantially all
of the assets of All Information Systems, Inc.
II-2
5
On July 10, 1998, Interliant issued 12,000 shares of common stock to
Software Business Technologies, Inc., as part of the purchase price for
substantially all of the Web hosting assets of Software Business Technologies,
Inc.
On July 30, 1998, Interliant issued 5,490 shares of common stock to
BestWare, Inc. (dba "Maikon"), as part of the purchase price for substantially
all of the assets of BestWare, Inc. (dba "Maikon").
On August 31, 1998, in connection with the acquisition of B.N. Technology,
Inc., and as consideration for entering into employment agreements with
Interliant, Interliant issued 240,000 shares of common stock to Mr. Bernd
Neumann and Andrea Neumann, his wife, and 60,000 shares of common stock to Mr.
Thomas Gorny.
On September 16, 1998, in connection with the acquisition of GEN
International Inc., and as consideration for entering into a consulting
agreement with Interliant, Interliant issued 25,000 shares of common stock to
Mr. Thomas Heimann and Patricia Karasy, his wife.
On September 18, 1998, Interliant issued to WEB, for a purchase price of
$7,500,000, 4,500,000 shares of common stock.
On December 4, 1998, Interliant issued to WEB, for a purchase price of
$7,500,000, 4,500,000 shares of common stock.
On January 28, 1999, Interliant issued 2,647,658 shares of Series A
Redeemable Convertible Preferred Stock, convertible into an equal amount of
shares of common stock, and warrants to purchase 749,625 shares of common stock
to SOFTBANK Technology Ventures IV L.P. and one of its affiliates, SOFTBANK
Technology Advisors Fund for a purchase price of $13,000,000.
On February 4, 1999, Interliant issued 450,000 shares of common stock to
Digiweb, Inc. as part of the purchase price for substantially all of the assets
of Digiweb, Inc.
On February 4, 1999, in connection with the acquisition of substantially
all of the assets of Telephonetics International, Inc., Interliant issued
140,000 shares of common stock to Telephonetics, International, Inc..
On February 4, 1999, Interliant issued to WEB, for a purchase price of
$11,000,000, 6,600,000 shares of common stock.
On February 17, 1999, in connection with the acquisition of Net Daemons
Associates, Inc., Interliant issued 425,000 shares of common stock to certain
stockholders of Net Daemons Associates, Inc.
On March 10, 1999, in connection with the acquisition of substantially all
of the assets of Interliant Texas Interliant issued 2,748,555 shares of common
stock to Mathew Wolf, 398,845 shares of common stock to the Ann Weltchek Wolf
1995 Marital Trust, 797,690 shares of common stock to the Mathew D. Wolf
Children's Trust, 31,908 shares of common stock to Michael August and 114,644
shares of common stock to Broadview Holdings LLP.
On April 19, 1999, SOFTBANK exercised its warrants to purchase 749,625
shares of the common stock of Interliant for an aggregate exercise price of
$5,000,000.
On May 4, 1999, in connection with the acquisition of Advanced Web
Creations, Inc. Interliant issued 52,500 to Advanced Web Creations, Inc., 2,250
shares of common stock to Santa Fe Capital Group of New Mexico, Inc., 53,417
shares of common stock to Gary Rudd, 53,416 shares of common stock to Stephen
Rudd, 53,417 shares of common stock to Mark Lichtenstein and 10,000 shares of
common stock to Kevin Paul.
On May 19, 1999, as consideration for entering into a licensing
arrangement, Interliant issued 6,000 shares of common stock to Greg Stipe.
As of the date of the filing of this Registration Statement, options to
purchase 581,894 shares of common stock have been exercised at a weighted
average exercise price of $0.17 per share.
II-3
6
(B) GRANTS OF STOCK OPTIONS.
The Interliant, Inc. 1998 Stock Option Plan was adopted by Interliant's
Board of Directors on February 1, 1998. As of the date hereof, options to
purchase up to an aggregate 3,713,994 shares of common stock at prices ranging
from $0.13 to $10.00 per share, had been granted to employees of Interliant, of
which options to purchase up to an aggregate of 3,092,700 shares of common
stock, at a weighted average exercise price of $2.83 per share, were outstanding
as of such date.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <C> <S>
1.1 -- Form of U.S. Purchase Agreement.*
1.2 -- Form of International Purchase Agreement.*
2.1 -- Asset Purchase Agreement among Sage Networks Acquisition
Corp., Sage Networks, Inc., Interliant, Inc. and the
shareholders of Interliant, Inc., dated March 8, 1999.*
2.2 -- Agreement to Deliver Shares between Interliant, Inc., Sage
Networks Acquisition Corp. and Sage Networks, Inc., dated as
of March 10, 1999.*
2.3 -- Agreement and Plan of Merger by and among Net Daemons, Inc.,
the Shareholders Party hereto and Sage Networks, Inc. and
Sage NDA Acquisition Corp., dated as of February 17, 1999.*
2.4 -- Asset Purchase Agreement between Digiweb, Inc., a Delaware
corporation, Yi Wen Chung, Diane X. Chen and Digiweb, Inc.,
a Maryland corporation, dated February 4, 1999.*
2.5 -- Asset Purchase Agreement between Telephonetics
International, Inc., Alan Kvares and Telephonetics, Inc.,
dated February 4, 1999.*
2.6 -- Asset Purchase Agreement between Sage Networks Acquisition
Corp., Thomas Heimann and GEN International Inc., dated
September 16, 1998.*
2.7 -- Asset Purchase Agreement between Global Entrepreneurs
Network, Inc. and Sage Networks Acquisition Corp., dated as
of September 16, 1998.*
2.8 -- Stock Purchase Agreement among B.N. Technology, Inc., Bernd
Neumann, Annedore Sommer, and Sage Networks, Inc., dated
August 31, 1998.*
2.9 -- Asset Purchase Agreement between Sage Networks, Inc. and
HomeCom Communications, Inc. dated June 10, 1998.*
2.10 -- Asset Purchase Agreement between Sage Networks Acquisition
Corp., Bonnie Shimel, William Nicholson and James Kucharski,
Alan Shimel and Tri-Star Web Creations, Inc., dated May 1,
1998.*
2.11 -- Asset Purchase Agreement between Sage Networks Acquisition
Corp., Steven C. Dabbs and Clever Computers, Inc., dated
April 7, 1998.*
3.1 -- Form of Amended and Restated Certificate of Incorporation of
the Registrant.*
3.2 -- Form of Amended and Restated By-Laws of the Registrant.*
4.1 -- Specimen Certificate for common stock of the Registrant.*
4.2 -- Investors Agreement, dated as of January 28, 1999, by and
among Sage Networks, Inc., SOFTBANK Technology Ventures IV,
L.P. and SOFTBANK Technology Advisors Funds, L.P.*
4.3 -- Securities Purchase Agreement between Sage Networks, Inc.
and SOFTBANK Technology Ventures IV, L.P. and SOFTBANK
Technology Advisors Funds, L.P. dated January 28, 1999.*
4.4 -- Registration Rights Agreement, dated as of December 8, 1997,
by and between Sage Networks, Inc. and Web Hosting
Organization LLC.*
4.5 -- Shareholders Agreement by and among Sage Networks, Inc. and
each of the Stockholders of Sage Networks, Inc., dated as of
March 10, 1999.*
</TABLE>
II-4
7
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <C> <S>
4.6 -- Letter Agreement, dated November 26, 1997, between Leonard
J. Fassler, Bradley A. Feld, Chef Nominees Limited and
Charterhouse Equity Partners III L.P. (Agreement has now
been terminated.)*
5.1 -- Opinion of Dewey Ballantine LLP.*
10.1 -- Professional Services Agreement by and between Sage
Networks, Inc. and Portal Software, Inc., dated as of July
31, 1998.*
10.2 -- Software License and Support Agreement by and between Sage
Networks, Inc. and Portal Software, Inc., dated as of July
31, 1998.*
10.3 -- The Vantive Corporation Software License and Support
Agreement by and between Interliant Networks, Inc. and The
Vantive Corporation, dated as of September 29, 1998.*
10.4 -- Addendum to The Vantive Corporation Software License and
Support Agreement by and between Sage Networks, Inc. and The
Vantive Corporation, dated as of September 29, 1998.*
10.5 -- Master Discounted Internet Services Agreement by and between
UUNET Technologies, Inc. and Sage Networks, Inc., dated
February 17, 1999.*
10.6 -- Joint Development Agreement between Lotus Development
Corporation and Interliant, Inc., dated as of April 27,
1998.*
10.7 -- Sage Networks, Inc. 1998 Stock Option Plan.*
10.8 -- Form of ISO Award Agreement.*
10.9 -- Form of Incentive Stock Option Award Agreement between Sage
Networks, Inc. and the individual Optionee.*
10.10 -- Form of Nonqualified Stock Option Award Agreement between
Sage Networks, Inc. and the individual Optionee.*
10.11 -- Employment Agreement by and between Sage Networks, Inc., and
Leonard J. Fassler, dated January 1, 1999.*
10.12 -- Consulting Agreement by and between Sage Networks, Inc., and
Intensity Ventures, Inc., dated January 1, 1999.*
10.13 -- Employment Agreement by and between Sage Networks, Inc., and
Stephen W. Maggs, dated January 1, 1999.*
10.14 -- Employment Agreement by and between Sage Networks, Inc., and
Rajat Bhargava, dated January 1, 1999.*
10.15 -- Employment Agreement between Sage Networks, Inc. and James
M. Lidestri, dated March 3, 1999.*
10.16 -- Deed of Lease by and between Westwood Center, LLC and Sage
Networks, Inc., dated February 11, 1999.*
10.17 -- Sublease Agreement by and between Southern Company Services,
Inc. and Sage Networks, Inc., dated May 29, 1998.*
10.18 -- First Amendment to Sublease Agreement by and between
Southern Company Services, Inc. and Sage Networks, Inc.,
dated December 15, 1998.*
10.19 -- Sublease Agreement by and between Leuko Site, Inc. and Sage
Networks, Inc., dated November 17, 1998.*
10.20 -- Agreement for Terminal Facilities Collocation Space by and
between Comstor Corporation and Sage Networks, Inc., dated
as of July 2, 1998.*
10.21 -- Standard Lease Agreement, dated June 11, 1995, between
LaSalle Partners Management Limited (as agent for Fannin
Street Limited Partnership) and Wolf Communications
Company.*
10.22 -- First Amendment to Standard Lease, dated January 18, 1996,
between LaSalle Partners Management Limited (as agent for
Fannin Street Limited Partnership) and Wolf Communications
Company.*
10.23 -- Second Amendment to Standard Lease, dated August 8, 1996,
between LaSalle Partners Management Limited (as agent for
Fannin Street Limited Partnership) and Wolf Communications
Company.*
</TABLE>
II-5
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <C> <S>
10.24 -- First Amendment to Lease Agreement, between Westwood Center,
L.L.C. and Interliant, Inc., dated June 28, 1999.*
10.25 -- Master Lease Agreement between Leasing Technologies
International, Inc. and Interliant, Inc., dated June 9,
1999.*
10.26 -- Agreement of Lease between Purchase Corporate Park
Associates and Courtaulds United States Inc., dated August
23, 1991.*
10.27 -- Sublease, by and between Akzo Nobel Courtalds United States,
Inc. and Interliant, Inc., dated as of May 11, 1999.*
10.28 -- Agreement of Lease, between Purchase Corporate Park
Associates, L.P. and Interliant, Inc., dated as of June 16,
1999 (Interliant I).*
10.29 -- Agreement of Lease, between Purchase Corporate Park
Associates, L.P. and Interliant, Inc., dated as of June 16,
1999 (Interliant II).*
10.30 -- Agreement of Lease, between Purchase Corporate Park
Associates, L.P. and Interliant, Inc., dated as of June 16,
1999 (Interliant III).*
21.1 -- List of Subsidiaries.*
23.1 -- Consent of Ernst & Young LLP with respect to the financial
statements of Interliant, Inc. (formerly known as Sage
Networks, Inc.).
23.2 -- Consent of Ernst & Young LLP with respect to the financial
statements of Interliant, Inc. (which is not the registrant
and which is referred to in this prospectus as Interliant
Texas)
23.3 -- Consent of Urbach Kahn & Werlin PC.
23.4 -- Consent of BSC&E.
23.5 -- Consent of PricewaterhouseCoopers LLP.
23.6 -- Consent of Frankel, Lodgen, Locher, Golditch, Sardi &
Howard.
23.7 -- Consent of BDO Seidman, LLP.
23.8 -- Consent of Deloitte & Touche LLP.
23.9 -- Consent of Dewey Ballantine LLP (contained in Exhibit 5.1).*
24.1 -- Power of Attorney (included on page II-5).*
27.1 -- Financial Data Schedule.*
99.1 -- Consent of Director Nominee.*
</TABLE>
---------------
* Previously filed.
(b) Consolidated Financial Statement 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.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the
underwriters, at the closing specified in the underwriting agreement,
certificates in such denominations and registered in such names as required by
the underwriters to permit prompt delivery to each purchaser.
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 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.
II-6
9
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 the purpose 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 this offering of such securities at the
time shall be deemed to be the initial bona fide offering thereof.
II-7
10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, on July 6, 1999.
INTERLIANT, INC.
By: /s/ BRUCE S. KLEIN
------------------------------------
Bruce S. Klein
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons on July 6,
1999 in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ LEONARD J. FASSLER* Co-Chairman of the Board July 6, 1999
-------------------------------------
Leonard J. Fassler
/s/ BRADLEY A. FELD* Co-Chairman of the Board July 6, 1999
-------------------------------------
Bradley A. Feld
/s/ STEPHEN W. MAGGS* Vice Chairman, Treasurer and Director July 6, 1999
-------------------------------------
Stephen W. Maggs
/s/ WILLIAM A. WILSON* Chief Financial Officer (Chief July 6, 1999
------------------------------------- Financial and Accounting Officer)
William A. Wilson
/s/ MERRIL M. HALPERN* Director July 6, 1999
-------------------------------------
Merril M. Halpern
/s/ THOMAS C. DIRCKS* Director July 6, 1999
-------------------------------------
Thomas C. Dircks
/s/ PATRICIA A. M. RILEY* Director July 6, 1999
-------------------------------------
Patricia A. M. Riley
/s/ JAY M. GATES* Director July 6, 1999
-------------------------------------
Jay M. Gates
/s/ CHARLES R. LAX* Director July 6, 1999
-------------------------------------
Charles R. Lax
</TABLE>
*By: /s/ BRUCE S. KLEIN
---------------------------------------------------------
Bruce S. Klein
(Attorney in fact)
II-8
11
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
------- ----------- ----
<C> <C> <S> <C>
1.1 -- Form of U.S. Purchase Agreement.*
1.2 -- Form of International Purchase Agreement.*
2.1 -- Asset Purchase Agreement among Sage Networks Acquisition
Corp., Sage Networks, Inc., Interliant, Inc. and the
shareholders of Interliant, Inc., dated March 8, 1999.*
2.2 -- Agreement to Deliver Shares between Interliant, Inc., Sage
Networks Acquisition Corp. and Sage Networks, Inc., dated as
of March 10, 1999.*
2.3 -- Agreement and Plan of Merger by and among Net Daemons, Inc.,
the Shareholders Party hereto and Sage Networks, Inc. and
Sage NDA Acquisition Corp., dated as of February 17, 1999.*
2.4 -- Asset Purchase Agreement between Digiweb, Inc., a Delaware
corporation, Yi Wen Chung, Diane X. Chen and Digiweb, Inc.,
a Maryland corporation, dated February 4, 1999.*
2.5 -- Asset Purchase Agreement between Telephonetics
International, Inc., Alan Kvares and Telephonetics, Inc.,
dated February 4, 1999.*
2.6 -- Asset Purchase Agreement between Sage Networks Acquisition
Corp., Thomas Heimann and GEN International Inc., dated
September 16, 1998.*
2.7 -- Asset Purchase Agreement between Global Entrepreneurs
Network, Inc. and Sage Networks Acquisition Corp., dated as
of September 16, 1998.*
2.8 -- Stock Purchase Agreement among B.N. Technology, Inc., Bernd
Neumann, Annedore Sommer, and Sage Networks, Inc., dated
August 31, 1998.*
2.9 -- Asset Purchase Agreement between Sage Networks, Inc. and
HomeCom Communications, Inc. dated June 10, 1998.*
2.10 -- Asset Purchase Agreement between Sage Networks Acquisition
Corp., Bonnie Shimel, William Nicholson and James Kucharski,
Alan Shimel and Tri-Star Web Creations, Inc., dated May 1,
1998.*
2.11 -- Asset Purchase Agreement between Sage Networks Acquisition
Corp., Steven C. Dabbs and Clever Computers, Inc., dated
April 7, 1998.*
3.1 -- Form of Amended and Restated Certificate of Incorporation of
the Registrant.*
3.2 -- Form of Amended and Restated By-Laws of the Registrant.*
4.1 -- Specimen Certificate for common stock of the Registrant.*
4.2 -- Investors Agreement, dated as of January 28, 1999, by and
among Sage Networks, Inc., SOFTBANK Technology Ventures IV,
L.P. and SOFTBANK Technology Advisors Funds, L.P.*
4.3 -- Securities Purchase Agreement between Sage Networks, Inc.
and SOFTBANK Technology Ventures IV, L.P. and SOFTBANK
Technology Advisors Funds, L.P. dated January 28, 1999.*
4.4 -- Registration Rights Agreement, dated as of December 8, 1997,
by and between Sage Networks, Inc. and Web Hosting
Organization LLC.*
4.5 -- Shareholders Agreement by and among Sage Networks, Inc. and
each of the Stockholders of Sage Networks, Inc., dated as of
March 10, 1999.*
4.6 -- Letter Agreement, dated November 26, 1997, between Leonard
J. Fassler, Bradley A. Feld, Chef Nominees Limited and
Charterhouse Equity Partners III L.P. (Agreement has now
been terminated.)*
5.1 -- Opinion of Dewey Ballantine LLP.*
10.1 -- Professional Services Agreement by and between Sage
Networks, Inc. and Portal Software, Inc., dated as of July
31, 1998.*
10.2 -- Software License and Support Agreement by and between Sage
Networks, Inc. and Portal Software, Inc., dated as of July
31, 1998.*
</TABLE>
12
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
------- ----------- ----
<C> <C> <S> <C>
10.3 -- The Vantive Corporation Software License and Support
Agreement by and between Interliant Networks, Inc. and The
Vantive Corporation, dated as of September 29, 1998.*
10.4 -- Addendum to The Vantive Corporation Software License and
Support Agreement by and between Sage Networks, Inc. and The
Vantive Corporation, dated as of September 29, 1998.*
10.5 -- Master Discounted Internet Services Agreement by and between
UUNET Technologies, Inc. and Sage Networks, Inc., dated
February 17, 1999.*
10.6 -- Joint Development Agreement between Lotus Development
Corporation and Interliant, Inc., dated as of April 27,
1998.*
10.7 -- Sage Networks, Inc. 1998 Stock Option Plan.*
10.8 -- Form of ISO Award Agreement.*
10.9 -- Form of Incentive Stock Option Award Agreement between Sage
Networks, Inc. and the individual Optionee.*
10.10 -- Form of Nonqualified Stock Option Award Agreement between
Sage Networks, Inc. and the individual Optionee.*
10.11 -- Employment Agreement by and between Sage Networks, Inc., and
Leonard J. Fassler, dated January 1, 1999.*
10.12 -- Consulting Agreement by and between Sage Networks, Inc., and
Intensity Ventures, Inc., dated January 1, 1999.*
10.13 -- Employment Agreement by and between Sage Networks, Inc., and
Stephen W. Maggs, dated January 1, 1999.*
10.14 -- Employment Agreement by and between Sage Networks, Inc., and
Rajat Bhargava, dated January 1, 1999.*
10.15 -- Employment Agreement between Sage Networks, Inc. and James
M. Lidestri, dated March 3, 1999.*
10.16 -- Deed of Lease by and between Westwood Center, LLC and Sage
Networks, Inc., dated February 11, 1999.*
10.17 -- Sublease Agreement by and between Southern Company Services,
Inc. and Sage Networks, Inc., dated May 29, 1998.*
10.18 -- First Amendment to Sublease Agreement by and between
Southern Company Services, Inc. and Sage Networks, Inc.,
dated December 15, 1998.*
10.19 -- Sublease Agreement by and between Leuko Site, Inc. and Sage
Networks, Inc., dated November 17, 1998.*
10.20 -- Agreement for Terminal Facilities Collocation Space by and
between Comstor Corporation and Sage Networks, Inc., dated
as of July 2, 1998.*
10.21 -- Standard Lease Agreement, dated June 11, 1995, between
LaSalle Partners Management Limited (as agent for Fannin
Street Limited Partnership) and Wolf Communications
Company.*
10.22 -- First Amendment to Standard Lease, dated January 18, 1996,
between LaSalle Partners Management Limited (as agent for
Fannin Street Limited Partnership) and Wolf Communications
Company.*
10.23 -- Second Amendment to Standard Lease, dated August 8, 1996,
between LaSalle Partners Management Limited (as agent for
Fannin Street Limited Partnership) and Wolf Communications
Company.*
10.24 -- First Amendment to Lease Agreement, between Westwood Center,
L.I.C. and Interliant, Inc., dated June 28, 1999.*
10.25 -- Master Lease Agreement between Leasing Technologies
International, Inc. and Interliant, Inc., dated June 9,
1999.*
10.26 -- Agreement of Lease between Purchase Corporate Park
Associates and Courtaulds United States Inc., dated August
23, 1991.*
10.27 -- Sublease, by and between Akzo Nobel Courtalds United States,
Inc. and Interliant, Inc., dated as of May 11, 1999.*
</TABLE>
13
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
------- ----------- ----
<C> <C> <S> <C>
10.28 -- Agreement of Lease, between Purchase Corporate Park
Associates, L.P. and Interliant, Inc., dated as of June 16,
1999 (Interliant I).*
10.29 -- Agreement of Lease, between Purchase Corporate Park
Associates, L.P. and Interliant, Inc., dated as of June 16,
1999 (Interliant II).*
10.30 -- Agreement of Lease, between Purchase Corporate Park
Associates, L.P. and Interliant, Inc., dated as of June 16,
1999 (Interliant III).*
21.1 -- List of Subsidiaries.*
23.1 -- Consent of Ernst & Young LLP with respect to the financial
statements of Interliant, Inc. (formerly known as Sage
Networks, Inc.).
23.2 -- Consent of Ernst & Young LLP with respect to the financial
statements of Interliant, Inc. (which is not the registrant
and which is referred to in this prospectus as Interliant
Texas.)
23.3 -- Consent of Urbach Kahn & Werlin PC.
23.4 -- Consent of BSC&E.
23.5 -- Consent of PricewaterhouseCoopers LLP.
23.6 -- Consent of Frankel, Lodgen, Locher, Golditch, Sardi &
Howard.
23.7 -- Consent of BDO Seidman, LLP.
23.8 -- Consent of Deloitte & Touche LLP.
23.9 -- Consent of Dewey Ballantine LLP (contained in Exhibit 5.1).*
24.1 -- Power of Attorney (included on page II-5).*
27.1 -- Financial Data Schedule.*
99.1 -- Consent of Director Nominee.*
</TABLE>
---------------
* Previously filed.
(b) Consolidated Financial Statement 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.
1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions "Experts" and
"Selected Consolidated Financial Data" and to the use of our report dated
February 15, 1999, except for the second to the last paragraph of Note 12, as to
which the date is March 10, 1999, in Amendment No. 6 to the Registration
Statement (Form S-1 No. 333-74403) and related Prospectus of Interliant, Inc.
(formerly known as Sage Networks, Inc.) for the registration of 7,000,000 shares
of its common stock.
Ernst & Young LLP
/s/ Ernst & Young LLP
Boston, Massachusetts
July 2, 1999
1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions "Experts" and
"Selected Consolidated Financial Data" and to the use of our report dated
February 26, 1999, except for Note 11, as to which the date is March 10, 1999,
with respect to the financial statements of Interliant, Inc. (which is not the
registrant and which is referred to in this prospectus as Interliant Texas)
included in Amendment No. 6 to the Registration Statement (Form S-1 No.
333-74403) and related Prospectus of Interliant, Inc. (formerly Saga Networks,
Inc.) for the registration of shares of its common stock.
/s/ ERNST & YOUNG LLP
Houston, Texas
July 2, 1999
1
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the use in
the Prospectus constituting part of this Registration Statement on Form S-1 of
our report dated July 13, 1998, relating to the financial statements of Tri
Star Web Creations, Inc.; our report dated September 4, 1998 relating to the
consolidated financial statements of GEN International, Inc. and Subsidiaries,
and our report dated January 24, 1999 relating to the financial statements of
Digiweb, Inc., which reports appear in such Prospectus. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ Urbach Kahn & Werlin PC
------------------------------
New York, NY
July 2, 1999
1
EXHIBIT 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the use
in the Prospectus constituting part of this Registration Statement on Form S-1
of our report dated March 19, 1998, relating to the financial statements of
Clever Computers, Inc., which appears in such Prospectus. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
BSC & E
Atlanta, Georgia
July 6, 1999
1
[PRICEWATERHOUSECOOPERS LOGO]
EXHIBIT 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-1 of our report, which includes an explanatory
paragraph regarding basis of presentation, dated August 18, 1998, relating to
the financial statements of HostAmerica, a division of HomeCom Communications,
Inc., which appears in such Prospectus. We also consent to the reference to us
under the heading "Experts" in such Prospectus.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Atlanta, Georgia
July 2, 1999
1
[FRANKEL, LODGEN, LACHER, GOLDITCH, SARDI & HOWARD LETTERHEAD]
EXHIBIT 23.6
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the use in the
Prospectus constituting part of this Registration Statement on Form S-1 of our
report dated September 11, 1998, relating to the financial statements of B.N.
Technology, Inc. dba Internet Communications, which appears in such Prospectus.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
FRANKEL, LODGEN, LACHER, GOLDITCH, SARDI & HOWARD
Encino, California
July 2, 1999
1
EXHIBIT 23.7
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting a part of this
Registration Statement of our report dated January 15, 1999, relating to the
combined financial statements of Telephonetics International, Inc. and
Affiliate, which is contained in the Prospectus.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
Miami, Florida
July 2, 1999
1
EXHIBIT 23.8
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 6 to Registration Statement No.
333-74403 of Interliant, Inc. of our report dated February 2, 1999 (February 17,
1999 as to Note 10) relating to the financial statements of Net Daemons
Associates, Inc. appearing in the Prospectus, which is part of this Registration
Statement.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
Deloitte & Touche LLP
Boston, Massachusetts
July 2, 1999