<PAGE>
As filed with the Securities and Exchange Commission on May 20, 1999
Registration No. 333-
---------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
F 0 R M S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WORLDGATE COMMUNICATIONS, INC.
------------------------------
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 23-2866697
------------------------------ -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3220 Tillman Drive, Suite 300
Bensalem, Pennsylvania 19020
(215)633-5100
---------------------------------------------------
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
WORLDGATE COMMUNICATIONS, INC.
1996 STOCK OPTION PLAN
----------------------
(Full title of the plan)
Randolph J. Gort, Esq.
Vice President, General Counsel and Secretary
WorldGate Communications, Inc.
3220 Tillman Drive, Suite 300
BENSALEM, PENNSYLVANIA 19020
----------------------------
(Name and address of agent for service)
(215)633-5100
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Please send copies of all communications to:
Walter J. Mostek, Jr., Esquire
Drinker Biddle & Reath LLP
1000 Westlakes Drive, Suite 300
Berwyn, Pennsylvania 19312-2409
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------- ------------------------------------------------------------ ----------------- ----------------
- --------------------- ------------------------------------------------------------ ----------------- ----------------
PROPOSED
TITLE OF SECURITIES MAXIMUM AMOUNT OF
TO AMOUNT TO BE REGISTERED (1)(2) AGGREGATE REGISTRATION
BE REGISTERED OFFERING FEE
PRICE (2)
- --------------------- ------------------------------------------------------------ ----------------- ----------------
<S> <C> <C> <C>
Common Stock 22,000 shares of $0.75 per share $16,500.00
($0.01 par value)
- --------------------- ------------------------------------------------------------ ----------------- ----------------
33,333 shares at $1.32 per share $43,999.56
- --------------------- ------------------------------------------------------------ ----------------- ----------------
32,000 shares at $1.50 per share
$48,000.00
- --------------------- ------------------------------------------------------------ ----------------- ----------------
16,666 shares at $1.65 per share
$27,498.90
- --------------------- ------------------------------------------------------------ ----------------- ----------------
245,333 shares at $2.25 per share
$551,999.25
- --------------------- ------------------------------------------------------------ ----------------- ----------------
287,152 shares at $4.50 per share
$1,278,684.00
- --------------------- ------------------------------------------------------------ ----------------- ----------------
265,800 shares at $16.50 per share
$4,385,700.00
- --------------------- ------------------------------------------------------------ ----------------- ----------------
2,797 shares at $21.00 per share $58,737.00
- --------------------- ------------------------------------------------------------ ----------------- ----------------
6,144 shares of $27.00 per share $165,888.00
- --------------------- ------------------------------------------------------------ ----------------- ----------------
688,775 shares at $34.65625 per share $23,870,358.00
- --------------------- ------------------------------------------------------------ ----------------- ----------------
TOTAL 1,600,000 $30,447,363.00 $8,982.00
- --------------------- ------------------------------------------------------------ ----------------- ----------------
- --------------------- ------------------------------------------------------------ ----------------- ----------------
</TABLE>
(1) Pursuant to Rule 416(a), this Registration Statement also registers
such indeterminate number of additional shares as may become issuable
under the Plan in connection with share splits, share dividends or
similar transactions.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the registration fee. As to shares subject to outstanding but
unexercised options, the price and fee are computed based upon the
price at which such options may be exercised. As to remaining shares
the price is based on the average of the highest and lowest prices for
the Common Stock as reported on the NASDAQ National Market System on
May 19, 1999.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
(NOT REQUIRED TO BE FILED AS PART OF THIS REGISTRATION STATEMENT)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by WorldGate
Communications, Inc. (the "Registrant" or the "Company") with the Securities and
Exchange Commission (the "Commission") are incorporated by reference into this
Registration Statement:
(a) the Prospectus filed by the Registrant on April 16, 1998
under the Securities Act of 1933, as amended (the "1933 Act") with respect to
the Registration Statement on Form S-1 (Registration No. 333-71997) (the "S-1
Registration Statement") filed by the Registrant on February 9, 1999 and
subsequently amended by amendments dated March 23, April 7 and April 15, 1999;
(b) the description of the common stock, par value $.01 per
share, of the Company (the "Common Stock") contained in the Company's
Registration Statement on Form 8-A dated April 12, 1999, filed with the
Securities and Exchange Commission, including any amendments or reports filed
for the purpose of updating such description; and
(c) all other reports filed pursuant to Sections 13(a) or 15(d)
of the Securities Exchange Act of 1934 since April 16, 1999.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after
the date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered pursuant to this Registration Statement
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 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.
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides, in general, that a corporation incorporated
under the laws of the State of Delaware, such as the Company, 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 (other than an
action by or in the right of the corporation) by reason of the fact that such
person is or
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<PAGE>
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 enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In the case of an action by or in the right of the
corporation, a Delaware corporation may indemnify any such person against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification shall 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 determines such person is fairly
and reasonably entitled to indemnity for such expenses.
The Registrant's certificate of incorporation, as amended,
currently states that a director of the registrant shall have no personal
liability to the registrant or its stockholders for monetary damages for breach
of fiduciary duty as a director except to the extent that Section 102(b)(7) (or
any successor provision) of the Delaware General Corporation Law, as amended
from time to time, expressly provides that the liability of a director may not
be eliminated or limited. No amendment or repeal of this provision shall apply
to or have any effect on the liability or alleged liability of any director of
the Registrant for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
The Registrant's by-laws require the Registrant to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was a director or officer of the Registrant, or is or was serving
while a director or office of the Registrant at its request as a director,
officer, employee, agent, fiduciary or other representative of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgements, fines,
excise taxes and amounts paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding to the full
extent permissible under Delaware law. Any person claiming indemnification as
provided in the bylaws shall be entitled to advances from the Registrant for
payment of the expenses of defending actions against such person in the manner
and to the full extent permissible under Delaware law. On the request of any
person requesting indemnification under such provisions, the board of directors
of the Registrant or a committee thereof shall determine whether such
indemnification is permissible or such determination shall be made by
independent legal counsel if the board or committee so directs or if the board
or committee is not empowered by statute to make such determination. The
indemnification and advancement of expenses provided by the bylaws shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any insurance or other agreement,
vote of shareholders or disinterested directors or otherwise, both as to actions
in their official capacity and as to actions in another capacity while holding
an office, and shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs, executors and
administrators of such person. The Registrant shall have the power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Registrant or is or was serving at its request
as a director, officer, employee, agent, fiduciary or other representative of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Registrant would have the power to indemnify him against such liability under
the provisions of the bylaws. The duties of the Registrant to indemnify and to
advance expenses to a director or officer provided in the bylaws shall be in the
nature of a contract between the Registrant and each such director or officer,
and no amendment or repeal of any such provision of the bylaws shall alter, to
the detriment of such director or officer, the right of such person to the
advancement of expenses or indemnification related to a claim based on an act or
failure to act, which took place prior to such amendment, repeal or termination.
Delaware law also permits indemnification in connection with a proceeding
brought by or in the right of the Registrant to procure a judgement in its
favor. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provision, the Registrant has been informed
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in that Securities Act and
is therefore unenforceable. The Registrant has directors and officers liability
insurance.
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The underwriting agreement between the Registrant and the
underwriter for the Registrant's initial public offering of its Common Stock
provides that the underwriters are obligated, under some circumstances, to
indemnify directors, officers and controlling persons of the Registrant against
some liabilities, including liabilities under the Act.
Reference is made to Item 9 of this Registration Statement for
additional information regarding indemnification of directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
No restricted securities are being reoffered or resold pursuant
to this Registration Statement.
ITEM 8. EXHIBITS.
4.1 Form of Amended and Restated Certificate of Incorporation of the
Company. Incorporated by reference from Exhibit 3.1 of the
Company's registration statement on Form S-1 (Registration No.
333-71997).
4.2 Form of Amended and Restated By-laws of the Company. Incorporated
by reference from Exhibit 3.2 of the Company's registration
statement on Form S-1 (Registration Statement No. 333-71997).
5 Opinion of Drinker Biddle & Reath LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Drinker Biddle & Reath LLP (Included in Exhibit 5).
25 Powers of Attorney (See Signature Page).
ITEM 9. UNDERTAKINGS
1. UNDERTAKINGS REQUIRED BY REGULATION S-K ITEM 512(a)
The undersigned Registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being
made pursuant to this Registration Statement, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in aggregate, represent
a fundamental change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in the volume
of the securities offered [if the total dollar value of securities offered would
not exceed that which was registered] and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the change in volume and price represents no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the registration statement; and
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<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) 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 by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered 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. UNDERTAKINGS REQUIRED BY REGULATION S-K ITEM 512(b).
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934(and where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
3. UNDERTAKINGS REQUIRED BY REGULATION S-K ITEM 512(h).
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 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Bensalem, Pennsylvania, on May 20, 1999.
WORLDGATE COMMUNICATIONS, INC.
By:/s/ HAL M. KRISBERGH
---------------------------
Hal M. Krisbergh
Chief Executive Officer and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Hal M. Krisbergh, Randall J. Gort
and David A. Dill, and each of them singly, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her 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 other 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 or necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or his or her substitute or substitutes or
any of them, or their or his 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.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------- -------------------------------------------------------------------- -----------------
<S> <C> <C>
/s/ HAL M. KRISBERGH Chairman of the Board of Directors, Chief Executive Officer May 20, 1999
- -------------------- (Principal Executive Officer)
Hal M. Krisbergh
/s/ DAVID A. DILL Chief Financial Officer and Administrative Officer May 20, 1999
- -------------------------- (Principal Financial and Accounting Officer)
David A. Dill
/s/ DAVID E. WACHOB Director May 20, 1999
- --------------------------
David E. Wachob
/s/ ALAN GERRY Director May 20, 1999
- --------------------------
Alan Gerry
/s/ MARCIA J. HOOPER Director May 20, 1999
- --------------------------
Marcia J. Hooper
/s/ RONALD A. WALTER Director May 20, 1999
- --------------------------
Ronald A. Walter
/s/ THOMAS G. BAXTER Director May 20, 1999
- --------------------------
Thomas G. Baxter
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
4.1 Form of Amended and Restated Certification of Incorporation of
the Company. Incorporated by reference from Exhibit 3.1 of the
Company's Registration Statement on Form S-1 (Registration No.
333-71997)
4.2 Form of Amended and Restated By-laws of the Company.
Incorporated by reference from Exhibit 3.2 of the Company's
Registration Statement on Form S-1 (Registration No. 333-71997)
5 Opinion of Drinker Biddle & Reath LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Drinker Biddle & Reath LLP. (Included in Exhibit 5)
25 Powers of Attorney.
(See Signature Page)
</TABLE>
<PAGE>
EXHIBIT 5
LAW OFFICES
DRINKER BIDDLE & REATH LLP
1000 Westlakes Drive, Suite 300
Berwyn, Pennsylvania 19312-2409
Telephone: (610) 993-2200
Fax: (610) 993-8585
May 20, 1999
WorldGate Communications, Inc.
3220 Tillman Drive, Suite 300
Bensalem, Pennsylvania 19020
Gentlemen:
We have acted as counsel to WorldGate Communications, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission of the Company's Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended, relating to 1,600,000 shares of Common Stock of the Company,
par value $.01 per share (the "Shares"), issuable upon the exercise of options
granted under the Company's 1996 Stock Option Plan (the "Plan").
In that capacity, we have examined the originals or copies,
certified or otherwise identified to our satisfaction, of the Certificate of
Incorporation and the By-laws of the Company, as amended through the date
hereof, resolutions of the Company's Board of Directors, and such other
documents and corporate records relating to the Company and the issuance and
sale of the Shares as we have deemed appropriate. The opinions expressed herein
are based exclusively on the General Corporation Law of the State of Delaware.
In all cases, we have assumed the legal capacity of each
natural person signing any of the documents and corporate records examined by
us, the genuineness of signatures, the authenticity of documents submitted to us
as originals, the conformity to authentic original documents of documents
submitted to us as copies and the accuracy and completeness of all corporate
records and other information made available to us by the Company.
Based upon the foregoing and consideration of such questions
of law as we have deemed relevant, we are of the opinion that Shares issued by
the Company upon the exercise of stock options properly granted under the Plan
and paid for in accordance with the terms of the Plan and the relevant stock
option agreement thereunder will be validly issued, fully paid and nonassessable
by the Company.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement. In giving this consent we do not admit that we come
within the categories of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended.
Very truly yours,
/s/ DRINKER BIDDLE & REATH LLP
------------------------------
DRINKER BIDDLE & REATH LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement Form S-8 of our report dated February 8, 1999, except as to the
information in Note 10 for which the date is April 15, 1999, relating to the
financial statements, which appears on page F-2 of WorldGate Communications
Inc.'s Registration Statement on Form S-1 (Registration No. 333-71997).
/s/ PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
May 20, 1999
