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As filed with the Securities and Exchange Commission on August 30, 2000
Registration 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
AT HOME CORPORATION
(Exact name of the Registrant as specified in its charter)
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<S> <C>
Delaware 77-0408319
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
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450 Broadway Street
Redwood City, California 94063
(Address of principal executive offices)
Options and purchase rights issued under the DataInsight, Inc.
1998 Equity Incentive Compensation Plan and assumed by
the Registrant in connection with its acquisition of DataInsight
(Full title of the plans)
Mark A. McEachen
Executive Vice President and Chief Financial Officer
450 Broadway Street
Redwood City, California 94063
(650) 556-5000
(Name, address and telephone number of agent for service)
Copies to:
Gordon K. Davidson, Esq.
Jeffrey R. Vetter, Esq.
Thomas J. Hall, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
Calculation Of Registration Fee
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===================================================================================================================================
Proposed Maximum Proposed
Title of Shares Amount Aggregate Maximum Aggregate Amount of
To Be Registered To Be Registered(1) Price Per Share(2) Offering Price(2) Registration Fee
===================================================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value per share 336,451 $ 13.8125 $ 4,647,230 $ 1,227
===================================================================================================================================
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(1) Represents shares reserved for issuance upon the exercise of options
granted under the DataInsight, Inc. 1998 Equity Incentive Compensation
Plan.
(2) Estimated Solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based
upon the average of the high and low prices of the Registrant's Series A
common stock as reported by the Nasdaq National Market on August 25, 2000.
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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") are incorporated into this registration statement by
reference:
(a) our most recent annual report on Form 10-K, as amended, filed with
the Commission;
(b) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since
the end of the fiscal year covered by the document referred to in (a)
above; and
(c) the description of our common stock contained in our registration
statement on Form 8-A filed under Section 12(g) of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by us 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 registered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
------- ---------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and executive officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities, including
reimbursement for expenses incurred arising under the Securities Act.
As permitted by the Delaware General Corporation Law, the Registrant's
certificate of incorporation, as amended, includes a provision that eliminates
the personal liability of its directors to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability:
. for any breach of the director's duty of loyalty to the corporation or
its stockholders;
. for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
. under Section 174 of the Delaware General Corporation Law; and
. for any transaction from which the director derived an improper
personal benefit.
As permitted by the Delaware General Corporation Law, the Registrant's
certificate of incorporation, as amended, further provides:
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. for mandatory indemnification, to the fullest extent permitted by
applicable law, for any person who is or was a director or officer, or
is or was serving at the request of the Registrant as a director,
officer, employee or agent of another corporation or of a partnership,
joint venture, trust, enterprise or nonprofit entity, including service
with respect to employee benefit plans, against all liability and loss
suffered and expenses (including attorneys' fees) reasonably incurred by
this person;
. that the Registrant's obligation to indemnify any person who was or is
serving at the Registrant's request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust,
enterprise or nonprofit entity must be reduced by any amount the person
may collect as indemnification from the other corporation, partnership,
joint venture, trust, enterprise or nonprofit entity;
. that the Registrant must advance to all indemnified parties the
expenses (including attorneys' fees) incurred in defending any
proceeding provided that indemnified parties (if they are directors or
officers) must provide the Registrant an undertaking to repay the
advances if indemnification is determined to be unavailable;
. that the rights conferred in the certificate of incorporation are not
exclusive; and
. that the Registrant may not retroactively amend the certification of
incorporation provisions relating to indemnity.
The Registrant entered into indemnity agreements with certain of its
current directors and executive officers to give such directors and executive
officers additional contractual assurances regarding the scope of the
indemnification set forth in its certificate of incorporation and to provide
additional procedural protections. The indemnification provision in the
Registrant's certificate of incorporation and in these indemnification
agreements may be sufficiently broad to permit indemnification of its directors
and officers for liabilities arising under the Securities Act. The Registrant
has also obtained directors' and officers' liability insurance that includes
coverage for securities matters.
See also the undertakings set out in response to Item 9.
Reference is made to the following documents regarding relevant
indemnification provisions described above and elsewhere herein:
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Document
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1. Fifth Amended and Restated Certificate of Incorporation (see Exhibit 3.01).
2. Certificate Amendment to Fifth Amended and Restated Certificate of Incorporation (see
Exhibit 3.02)
3. Form of Indemnification Agreement entered into between the Registrant and each of its
directors and executive officers (incorporated by reference to Exhibit 10.09 to the
Registrant's registration statement on Form S-1 (File No. 333-27323) declared effective
by the Commission on July 11, 1997).
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The Registrant has entered into various merger agreements and related
registration rights agreements in connection with its acquisitions of and
mergers with various companies, and purchase agreements and related registration
rights agreements in connection with its issuances of convertible notes, under
which the parties to those agreements have agreed to indemnify the Registrant
and its directors, officers, employees and controlling persons against specified
liabilities, including liabilities arising under the Securities Act, the
Exchange Act or other federal or state laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits are filed with this registration statement or
incorporated into this registration statement by reference:
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Incorporated by Reference
Exhibit ------------------------- Filed
Number Exhibit Description Form File No. Exhibit Filing Date Herewith
------- ------------------------------------------------------------------------ ---- --------- ------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
4.01 The Registrant's Fifth Amended and Restated Certificate of S-8 333-79883 4.01 06/03/99
Incorporation, filed with the Delaware Secretary of State on May 28,
1999.
4.02 Certificate of Amendment to the Registrant's Fifth Amended and X
Restated Certificate of Incorporation, filed with the Delaware
Secretary of State on August 28, 2000.
4.03 The Registrant's Second Amended and Restated Bylaws, as adopted on July S-1 333-27323 3.05 07/11/97
16, 1997.
4.04 Form of certificate of the Registrant's Series A common stock. S-1 333-27323 4.05 07/08/97
4.05 DataInsight, Inc. 1998 Equity Incentive Compensation Plan and related 10-Q 10.06 08/14/00
forms of agreements.
5.01 Opinion of Fenwick & West LLP regarding the legality of the shares X
being registered.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01). X
23.02 Consent of Ernst & Young LLP, Independent Auditors. X
24.01 Power of Attorney (see page II-5). X
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ITEM 9. UNDERTAKINGS.
The 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:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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
(c) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to the information in the registration
statement;
provided, however, that paragraphs (1)(a) and (1)(b) above 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 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 post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered in the
registration statement, and the offering of the securities at that time
shall be deemed to be the initial bona fide offering of those
securities.
(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.
(4) 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 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered in the
registration statement, and the offering of the securities at that time
shall be deemed to be the initial bona fide offering of those
securities.
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 this indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. If a claim for indemnification against these 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 the director, officer or controlling
person in connection with the securities being registered under this
registration statement, 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 indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of this issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Redwood City, state of California, on this 30th day of August,
2000.
AT HOME CORPORATION
By: /s/ George Bell
-----------------------------------
George Bell
Chief Executive Officer and
Chairman
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below and on the next page constitutes and appoints George Bell, Mark A.
McEachen and Mark Stevens, and each of them, his true and lawful attorneys-in-
fact and agents with full power of substitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement on Form S-8, and to
file the same with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or any of them, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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Principal Executive Officer:
/s/ GEORGE BELL Chief Executive August 30, 2000
------------------------------ Officer and Chairman
George Bell
Principal Financial
and Accounting Officer:
/s/ MARK A. MCEACHEN Executive Vice President and August 30, 2000
---------------------- Chief Financial Officer
Mark A. McEachen
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Signature Title Date
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Additional Directors:
/s/ THOMAS A. JERMOLUK Director August 30, 2000
-------------------------
Thomas A. Jermoluk
/s/ WILLIAM R. HEARST III Director August 30, 2000
-------------------------
William R. Hearst III
------------------------- Director
C. Michael Armstrong
/s/ MOHAN GYANI Director August 30, 2000
-------------------------
Mohan Gyani
------------------------- Director
Frank Ianni
------------------------- Director
John C. Petrillo
/s/ EDWARD S. ROGERS Director August 30, 2000
--------------------
Edward S. Rogers
/s/ RICHARD ROSCITT Director August 30, 2000
-------------------
Richard Roscitt
/s/ DANIEL E. SOMERS Director August 30, 2000
--------------------
Daniel E. Somers
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EXHIBIT INDEX
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Incorporated by Reference
Exhibit ------------------------- Filed
Number Exhibit Description Form File No. Exhibit Filing Date Herewith
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<S> <C> <C> <C> <C> <C> <C>
4.01 The Registrant's Fifth Amended and Restated Certificate of S-8 333-79883 4.01 06/03/99
Incorporation, filed with the Delaware Secretary of State on May 28,
1999.
4.02 Certificate of Amendment to the Registrant's Fifth Amended and X
Restated Certificate of Incorporation, filed with the Delaware
Secretary of State on August 28, 2000.
4.03 The Registrant's Second Amended and Restated Bylaws, as adopted on July S-1 333-27323 3.05 07/11/97
16, 1997.
4.04 Form of certificate of the Registrant's Series A common stock. S-1 333-27323 4.05 07/08/97
4.05 DataInsight, Inc. 1998 Equity Incentive Compensation Plan and related 10-Q 10.06 08/14/00
forms of agreements.
5.01 Opinion of Fenwick & West LLP regarding the legality of the shares X
being registered.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01). X
23.02 Consent of Ernst & Young LLP, Independent Auditors. X
24.01 Power of Attorney (see page II-5). X
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