AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 10, 1999
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
MEDSCAPE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 13-3879679
-------- ----------
(State Or Other (I.R.S. Employer
Jurisdiction Identification Number)
Of Incorporation Or Organization)
----------------------------
134 West 29th Street
New York, New York 10001-5399
(Address of Registrant's Principal Executive Offices)
----------------------------
Medscape, Inc. 1996 Stock Option Plan
(Full Title of the Plan)
----------------------------
Paul T. Sheils
President and Chief Executive Officer
Medscape, Inc.
134 West 29th Street
New York, New York 10001-5399
(212) 760-3100
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
----------------------------
Copies to:
John P. Schmitt, Esq. Mark E. Boulding, Esq.
Patterson, Belknap, Webb & Tyler LLP General Counsel and
1133 Avenue of the Americas Vice President of Regulatory Affairs
New York, New York 10036-6710 Medscape, Inc.
(212) 336-2000 134 West 29th Street
New York, New York 10001-5399
(212) 760-3100
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================================================
Proposed
Proposed Maximum
Title of Each Class of Amount to be Maximum Offering Aggregate
Securities to Be Registered Price Per Share Offering Price Amount of Registration
Registered (1) (1) Fee
========================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $.01 par
value.................. 6,237,877 $3.53 $22,005,188.40 $5,809.37
========================================================================================================================
</TABLE>
(1) Calculated in accordance with Rule 457(h) of the Securities Act of 1933.
Such calculation is based on the weighted average of (i) the weighted
average exercise price of $2.67 per share covering outstanding options under
the Medscape, Inc. 1996 Stock Option Plan to purchase 5,549,324 shares and
(ii) $10.44 per share (the average of the high and the low prices of the
Registrant's common stock on December 3, 1999) for 688,553 shares.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant are hereby incorporated by
reference in this Registration Statement:
The Registrant hereby incorporates by reference into this Registration
Statement the following documents or portions thereof as indicated:
(a) the Registrant's Registration Statement on Form S-1 (Registration
No. 333-77665) filed under the Securities Act of 1933, as amended
(the "Securities Act"), including any exhibits and amendments
thereto, and the Registrant's final Prospectus, dated September
27, 1999, pursuant to Rule 424(b) under the Act;
(b) all other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since January 1, 1999; and
(c) the description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, including any
amendments to such description in such Registration Statement.
In addition, 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 securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of 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 any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statements 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.
II-1
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with Section 145 of the Delaware General Corporation Law,
Article VI of our certificate of incorporation provides that no director of the
Registrant shall be personally liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (1) for any breach of the director's duty of loyalty to the Registrant
or its stockholders, (2) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (3) in respect of
certain unlawful dividend payments or stock redemptions or repurchases, or (4)
for any transaction from which the director derived an improper personal
benefit. In addition, the Registrant's certificate of incorporation provides
that if the Delaware General Corporation Law is amended to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Registrant shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
Article VII of the Registrant's bylaws provides that the Registrant
shall, to the full extent permitted by the laws of the State of Delaware, as
amended from time to time, indemnify all of its directors and officers.
The Registrant maintains directors and officers liability insurance
that covers its officers and directors against certain losses that may arise out
of their positions with the Registrant and covers the Registrant for liabilities
it may incur to indemnify its officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See "Exhibit Index" on page II-8.
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:
II-2
<PAGE>
(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 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 prospectus filed
with the Commission pursuant to Rule 424(b) under the
Securities Act 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 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, Form
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 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.
II-3
<PAGE>
(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 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.
(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 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Medscape, 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 City of New York, State of New York on
November 11, 1999.
MEDSCAPE, INC.
By: /s/ Paul T. Sheils
-----------------------------------------------
Name: Paul T. Sheils
Title: President and Chief Executive Officer
POWER OF ATTORNEY
Each individual whose signature appears below constitutes and appoints
each of Paul T. Sheils, Peter M. Frishauf and Steven Kalin, such person's true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for such person and in such 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, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto each said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that any said attorney-in-fact and agent, or any substitute or
substitutes of any of them, may lawfully do or cause to be done by virtue
hereof.
II-5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Paul T. Sheils President, Chief Executive November 11, 1999
- -------------------------------- Officer and Director
Paul T. Sheils (Principal Executive Officer)
/s/ Steven Kalin Chief Operating Officer and November 11, 1999
- -------------------------------- Chief Financial Officer
Steven Kalin (Principal Financial and
Accounting Officer)
/s/ Alan J. Patricof Chairman of the Board of November 11, 1999
- -------------------------------- Directors
Alan J. Patricof
/s/ Jeffrey L. Drezner Executive Vice President November 11, 1999
- -------------------------------- and Director
Jeffrey L. Drezner,
M.D., Ph.D.
/s/ Peter M. Frishauf Chairman-Executive Committee November 11, 1999
- -------------------------------- and Director
Peter M. Frishauf
/s/ Marc Butlein Director November 30, 1999
- --------------------------------
Marc Butlein
/s/ Esther Dyson Director November 11, 1999
- --------------------------------
Esther Dyson
/s/ Andrew Heyard Director November 15, 1999
- --------------------------------
Andrew Heyward
II-6
<PAGE>
/s/ Fredric Reynolds Director November 11, 1999
- --------------------------------
Fredric Reynolds
/s/ Carlo A. von Schroeter Director November 11, 1999
- --------------------------------
Carlo A. von Schroeter
/s/ Oakleigh Thorne Director November 11, 1999
- --------------------------------
Oakleigh Thorne
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION PAGE
- ------- ----------- ----
3.2* Amended and Restated Certificate of Incorporation
3.3* Bylaws
5.1 Opinion of Patterson, Belknap, Webb & Tyler LLP
10.15* 1996 Stock Option Plan
10.16* Form of Incentive Stock Option Agreement
10.17* Form of Non-Qualified Stock Option Agreement
10.18* Nonemployee Director Stock Option Agreement
23.1 Consent of Patterson, Belknap, Webb & Tyler LLP
(included in Exhibit 5.1 hereto)
23.2 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (see signature page)
- ------------------------
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1, as amended (No. 333-77665), which was declared effective on
September 27, 1999.
II-8
EXHIBIT 5.1
OPINION OF PATTERSON, BELKNAP, WEBB & TYLER LLP
December 10, 1999
Medscape, Inc.
134 West 29th Street
New York, New York 10001-5399
Re: MEDSCAPE, INC. 1996 STOCK OPTION PLAN
Dear Sirs:
We have acted as counsel to Medscape, Inc., a Delaware corporation (the
"Company"), in connection with the proposed registration by the Company under
the Securities Act of 1933, as amended (the "Act"), of 6,237,877 shares (the
"Shares") of the Company's Common Stock, par value $.01 per share (the "Common
Stock"), pursuant to the Company's registration statement on Form S-8 (the
"Registration Statement") filed with the Securities and Exchange Commission (the
"Commission") on the date hereof.
In rendering this opinion we have examined the Company's Certificate of
Incorporation and Bylaws, each as amended to date, and the minutes of the
corporate proceedings taken by the Company in connection with the authorization
of the Shares. We have also examined the originals, or copies certified or
otherwise identified to us, of the corporate records of the Company,
certificates of public officials and representatives of the Company, and such
other documents and records, and have made such investigations of law, as we
have deemed necessary for purposes of this opinion. We have assumed the
genuineness of all signatures, the conformity to the original of all copies and
the factual accuracy of all certificates submitted to us.
On the basis of the foregoing, we are of the opinion that the Shares
have been duly authorized by all necessary corporate action on the part of the
Company and when sold and delivered as contemplated by the Registration
Statement will constitute duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock.
We express no opinion as to any laws other than the General Corporation
Law of the State of Delaware and the federal laws of the United States of
America.
<PAGE>
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. In furnishing this opinion and giving
this consent, we do not admit that we are in the category of persons whose
consent is required under Section 7 of the Act, or the rules and regulations of
the Commission thereunder.
PATTERSON, BELKNAP, WEBB & TYLER LLP
By: /s/ John P. Schmitt
----------------------------------
A Member of the Firm
2
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incoporation by reference in this Registration
Statement on Form S-8 of our report dated February 12, 1999 (May 17, 1999 as to
Note 13 and July 22, 1999 as to Note 14) relating to the consolidated financial
statements of Medscape, Inc. which appear in the Prospectus included in the
Registration Statement (No. 333-77665) on Form S-1 declared effective on
September 27, 1999.
/s/ Deloitte & Touche LLP
New York, New York
December 10, 1999
