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As filed with the Securities and Exchange Commission on March 2, 2000
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HEALTHGATE DATA CORP.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-220927
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
25 CORPORATE DRIVE, SUITE 310
BURLINGTON, MASSACHUSETTS 01803
(781) 685-4000
(Address of Principal Executive Offices, Including Zip Code)
HEALTHGATE DATA CORP. 1994 STOCK OPTION PLAN, AS AMENDED
(Full Title of the Plan)
WILLIAM S. REECE, CHAIRMAN AND CHIEF EXECUTIVE OFFICER
HEALTHGATE DATA CORP.
25 CORPORATE DRIVE, SUITE 310
BURLINGTON, MASSACHUSETTS 01803
(781) 685-4000
(Name and Address and Telephone Number, Including Area Code,
of Agent for Service.)
Copy to:
STEPHEN M. KANE, ESQ.
RICH, MAY, BILODEAU & FLAHERTY, P.C.
176 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110
(617) 482-1360
CALCULATION OF REGISTRATION FEE
TITLE OF AMOUNT TO PROPOSED PROPOSED AMOUNT OF
SECURITIES BE REGISTERED MAXIMUM MAXIMUM REGISTRATION
TO BE OFFERING AGGREGATE FEE
REGISTERED PRICE PER OFFERING
SHARE PRICE
Common Stock, 3,559,997 shares(1) $8.625(2) $30,704,975 $8,106.12(3)
$.01 par value
per share
(1) Representing the shares offered, sold and to be sold and resold to and by
participants in the Registrant's 1994 Stock Option Plan, as amended (the
"Option Plan") pursuant to options granted or to be granted under the
Option Plan.
(2) Estimated, pursuant to Rule 457 parts (h) and (c), solely for purposes of
calculating the registration fee, on the basis of the average of the high
and low sales prices of the Registrant's Common Stock on February 28, 2000.
(3) A credit of $4460 remains from the registration fee paid in 1999 in
connection with the Registrant's Registration Statement on Form S-1
(Registration No. 333-76899). Additionally, Registrant wire transferred
$3,746.56 to Mellon Bank on February 29, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
HealthGate Data Corp. (sometimes referred to herein as the "Registrant") will
provide the documents containing the information specified in Part I of Form S-8
to participants in the Option Plan as specified in Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents are
not being filed with or included in this Registration Statement (by
incorporation or otherwise) in accordance with the rules and regulations of the
Securities and Exchange Commission (the "Commission"). These documents and the
documents incorporated by reference into this Registration Statement pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
(a) the Registrant's Prospectus that was filed with the Commission on January
26, 2000 pursuant to Rule 424(b) under the Securities Act and that contains
audited financial statements for the latest fiscal year for which such
statements have been filed; and
(b) the description of the Registrant's Common Stock, $.01 par value per share,
that is contained in its Registration Statement on Form 8-A filed with the
Commission on December 29, 1999 (which was incorporated by reference from
the Registrant's Registration Statement on Form S-1 that was filed with the
Commission on April 23, 1999 (Registration No. 333-76899) and subsequently
amended).
In addition, any and all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
(the "Exchange Act") subsequent to the date of this Registration Statement and
prior to the termination of the offering of the shares of Common Stock offered
hereby shall, to the extent required by law, be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the authorization and issuance of the securities offered hereby
will be passed upon for the Registrant by Rich, May, Bilodeau & Flaherty, P.C.,
Boston, Massachusetts. Stephen M. Kane, a member of Rich, May, Bilodeau &
Flaherty, P.C., is an Assistant Secretary of the Registrant, owns 3,000 shares
of the Registrant's common stock and has been granted options for the purchase
of up to 1,983 shares of the Registrant's common stock. As of February 28, 2000,
other attorneys at Rich, May, Bilodeau & Flaherty, P.C. owned an aggregate of
6,950 shares of the Registrant's common stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) the Registrant's Charter
Article IX of the Registrant's Restated Charter provides as follows:
To the maximum extent permitted by the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended, no director of the
Corporation shall be personally liable to the Corporation or to any of its
stockholders for monetary damages arising out of such director's breach of
fiduciary duty as a director of the Corporation. No amendment to or repeal of
the provisions of this paragraph shall apply to or have any effect on the
liability or the alleged liability of any director of the Corporation with
respect to any act or failure to act of such director occurring prior to such
amendment or repeal.
(b) the Registrant's ByLaws
Section 10 of the Registrant's Restated Bylaws provides as follows:
Section 10. INDEMNIFICATION
10.1 Officers, Directors and Others. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he, or a person of whom
he or she is the legal representative, is or was a director or officer of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, fiduciary, or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the corporation to the fullest extent which it is empowered to
do so unless prohibited from doing so by the General Corporation Law of the
State of Delaware, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said law permitted
the corporation to provide prior to such amendment) against all expense,
liability and loss (including attorneys' fees actually and reasonably incurred
by such person in connection with such proceeding) and such indemnification
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in Section 10.2 hereof, the
corporation shall indemnify any such person seeking indemnification in
connection with a proceeding initiated by such person only if such proceeding
was authorized by the board of directors. The right to indemnification conferred
in this Section 10 shall be a contract right and, subject to Sections 10.2 and
10.5 hereof, shall include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final disposition.
The corporation may, by action of the board of directors, provide
indemnification to employees and agents of the corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
10.2 Procedure; Timing. Any indemnification of a director or officer of the
corporation under Section 10.1 or advance of expenses under Section 10.5 shall
be made promptly, and in any event within thirty days, upon the written request
of the director or officer. If a determination by the corporation that the
director or officer is entitled to indemnification pursuant to this Section 10
is required, and the corporation fails to respond within sixty days to a written
request for indemnity, the corporation shall be deemed to have approved the
request. If the corporation denies a written request for indemnification or
advancing of expenses, in whole or in part, or if payment in full pursuant to
such request is not made within thirty days, the right to indemnification or
advances as granted by this Section 10 shall be enforceable by the director or
officer in any court of competent jurisdiction. Such person's costs and expenses
incurred in connection with successfully establishing his or her right to
indemnification, in whole or in part, in any such action shall also be
indemnified by the corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any, has been tendered to the corporation) that the claimant has not met the
standards of conduct which make it permissible under the General Corporation Law
of the State of Delaware for the corporation to indemnify the claimant for the
amount claimed, but the burden of such defense shall be on the corporation.
Neither the failure of the corporation (including its board, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of
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such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination by
the corporation (including its board, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
10.3 Rights Not Exclusive. The rights to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Section 10 shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Restated Certificate, bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
10.4 Insurance. The corporation may purchase and maintain insurance on its own
behalf and on behalf of any person who is or was a director, officer, employee,
fiduciary or agent of the corporation 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 any liability
asserted against him or her and incurred by him or her in any such capacity,
whether or not the corporation would have the power to indemnify such person
against such liability under this Section 10.
10.5 Expenses. Expenses incurred by any person described in Section 10.1 in
defending a proceeding shall be paid by the corporation in advance of such
proceeding's final disposition unless otherwise determined by the board in the
specific case upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the corporation. Such expenses incurred by
other employees and agents may be so paid upon such terms and conditions, if
any, as the board deems appropriate.
10.6 Other Persons. Persons who are not covered by the foregoing provisions of
this Section 10 and who are or were employees or agents of the corporation, or
who are or were serving at the request of the corporation as employees or agents
of another corporation, partnership, joint venture, trust or other enterprise,
may be indemnified to the extent authorized at any time or from time to time by
the board.
10.7 Contract Right. The provisions of this Section 10 shall be deemed to be a
contract right between the corporation and each director or officer who serves
in any such capacity at any time while this Section 10 and the relevant
provisions of the General Corporation Law of the State of Delaware or other
applicable law are in effect, and any repeal or modification of this Section 10
or any such law shall not affect any rights or obligations then existing with
respect to any state of facts or proceeding then existing.
10.8 Use of "corporation". For purposes of this Section 10, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, member, manager, employee
or agent of another corporation, limited liability company, partnership, joint
venture, trust or other enterprise, shall stand in the same position under this
Section 10 with respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation if its separate
existence had continued.
(c) Other Indemnification Provisions Affecting the Registrant
Section 145 of the Delaware General Corporation Law, as amended, provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have 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, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances. The Registrant
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intends to obtain insurance which insures the officers and directors of the
Registrant against certain losses and which insures the Registrant against
certain of its obligations to indemnify such officers and directors. The
Registrant has entered into indemnification agreements with each of its
directors and officers, pursuant to which the Registrant has agreed to indemnify
such directors to the fullest extent permitted by law for amounts paid and
expenses incurred in connection with an action or proceeding to which he or she
is or is threatened to be made a party by reason of such position. At present,
there is no pending litigation or proceeding involving a director or officer of
the Registrant as to which indemnification is being sought nor is the Registrant
aware of any threatened litigation that may result in claims for indemnification
by any director or officer.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The options for Registrant's Common Stock referred to in this Registration
Statement on Form S-8 were not registered under the Securities Act, in reliance
on the exemption set forth in Section 4(2) of the Securities Act for
transactions by an issuer not involving any public offering. Such options are
subject to option agreements, which include provisions stating that the optionee
must comply with applicable federal and state securities laws in connection with
the resale of any shares of Registrant's Common Stock received upon exercise of
the option.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into this
Registration Statement pursuant to Item 601 of Regulation S-K:
NO. DESCRIPTION
- --- -----------
4.1 The Registrant's 1994 Stock Option Plan (incorporated by reference to
Exhibit 10.9 of the Registrant's Registration Statement on Form S-1
(No. 333-76899), filed on April 23,1999).
4.2* Amendment to Registrant's 1994 Stock Option Plan dated November, 1999.
4.3 Form of Incentive Stock Option Agreement granted under 1994 Stock
Option Plan of the Registrant (incorporated by reference to Exhibit
10.10 of the Registrant's Registration Statement on Form S-1 (No.
333-76899), filed on April 23,1999).
4.4 Form of Non-Employee Director Option Agreement granted under 1994
Stock Option Plan of the Registrant (incorporated by reference to
Exhibit 10.11 of the Registrant's Registration Statement on Form S-1
(No. 333-76899), filed on April 23,1999).
5.1* Opinion of Rich, May, Bilodeau & Flaherty, P.C., as to the legality of
the securities being registered.
23.1* Consent of PricewaterhouseCoopers LLP.
23.2* Consent of Rich, May, Bilodeau & Flaherty, P.C. (included in
Exhibit 5.1).
- ------------
* filed herewith
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ITEM 9. UNDERTAKINGS.
(a) 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:
(i) To include any prospectus required by Section 10(a)(3) of the
Act;
(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 the aggregate, represent a fundamental change in the
information set forth in this Registration Statement (or the
most recent post-effective amendment thereto); and
(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 the
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) shall 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 Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the 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.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's Annual
Report on Form 10-K 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 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.
(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 provisions described in Item 6, 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 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 a director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by itself is
against public policy as expressed in the Securities 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, the undersigned Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Burlington, Commonwealth of Massachusetts, on this
the 2nd day of March, 2000.
THE REGISTRANT:
HEALTHGATE DATA CORP.
By: /s/ William S. Reece
--------------------------------
William S. Reece,
Chairman of the Board and Chief
Executive Officer
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.
Signature Title Date
--------- ----- ----
/s/ William S. Reece Chairman of the Board of March 2, 2000
- --------------------------- Directors, Chief Executive
William S. Reece Officer and President
(Principal executive officer)
/s/ Mary B. Miller Chief Financial Officer and March 2, 2000
- --------------------------- Treasurer (Principal financial
Mary B. Miller and accounting officer)
Director
- ---------------------------
Tina M. H. Blair
/s/ Jonathan J. G. Conibear Director March 2, 2000
- ---------------------------
Jonathan J. G. Conibear
/s/ Edson D. de Castro Director March 2, 2000
- ---------------------------
Edson D. de Castro
/s/ David Friend Director March 2, 2000
- ---------------------------
David Friend
/s/ Chris H. Horgen Director March 2, 2000
- ---------------------------
Chris H. Horgen
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EXHIBIT INDEX
NO. DESCRIPTION
- --- -----------
4.1 The Registrant's 1994 Stock Option Plan, as amended up to November
1999 (incorporated by reference to Exhibit 10.9 of the Registrant's
Registration Statement on Form S-1 (No. 333-76899), filed on April
23,1999).
4.2* Amendment to Registrant's 1994 Stock Option Plan dated November 1999.
4.3 Form of Incentive Stock Option Agreement granted under 1994 Stock
Option Plan of the Registrant (incorporated by reference to Exhibit
10.10 of the Registrant's Registration Statement on Form S-1 (No.
333-76899), filed on April 23,1999).
4.4 Form of Non-Employee Director Option Agreement granted under 1994
Stock Option Plan of the Registrant (incorporated by reference to
Exhibit 10.11 of the Registrant's Registration Statement on Form S-1
(No. 333-76899), filed on April 23,1999).
5.1* Opinion of Rich, May, Bilodeau & Flaherty, P.C., as to the legality of
the securities being registered.
23.1* Consent of PricewaterhouseCoopers LLP.
23.2* Consent of Rich, May, Bilodeau & Flaherty, P.C. (included in
Exhibit 5.1).
- -------------
* filed herewith
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Exhibit 4.2
NOVEMBER 1999 AMENDMENT TO
HEALTHGATE DATA CORP.
1994 STOCK OPTION PLAN
THIS NOVEMBER 1999 AMENDMENT TO HEALTHGATE DATA CORP. 1994 STOCK OPTION
PLAN shall be effective as of November 19, 1999.
WHEREAS, HealthGate Data Corp. (the "Company") maintains the HealthGate
Data Corp. 1994 Stock Option Plan (the "1994 Plan");
WHEREAS, by previous amendments to the Plan, the number of shares of the
Company's Common Stock which may be issued and sold by the Company pursuant to
Stock Options under the 1994 Plan was increased to 650,000 shares;
WHEREAS, by resolution approved by the Board of Directors of the Company on
November 18, 1999, and by vote of the stockholders of the Company on November
19, 1999, the number of shares that may be sold pursuant to Stock Options under
the Plan was increased from 650,000 (pre-split) shares to 907,715 (pre-split)
shares, which following the Company's anticipated 3.966 for 1 stock split will
equal 3,599,997 post-split shares;
NOW, THEREFORE, in consideration of the foregoing premises, the 1994 Plan
is hereby amended as follows:
1. NUMBER OF SHARES. The number of shares of the Company's Common Stock
that may be sold pursuant to Stock Options granted under the 1994 Plan shall be
increased from 650,000 (pre-split) shares to 907,715 (pre-split), which
following the Company's anticipated 3.966 for 1 stock split will equal 3,599,997
post-split shares.
IN WITNESS WHEREOF, the undersigned has executed this November 1999
Amendment to be effective as of the date first above written.
HEALTHGATE DATA CORP.
By: /s/ William S. Reece
-----------------------------------
William S. Reece
Chairman & Chief Executive Officer
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Exhibit 5.1
Rich, May, Bilodeau & Flaherty, P.C.
176 Federal Street
Boston, MA 02110-2223
Telephone (617) 482-1360
Fax (617) 556-3889
March 2, 2000
HealthGate Data Corp.
25 Corporate Drive
Suite 310
Burlington, MA 01803
Re: Shares Registered on Form S-8
-----------------------------
Ladies and Gentlemen:
We have been retained as counsel to HealthGate Data Corp., a Delaware
corporation (the "Company"), in connection with the preparation of the Company's
Registration Statement on Form S-8 for the registration of an aggregate of
3,559,997 shares of the Company's Common Stock, which have been issued or are
issuable pursuant to stock options issuable under the Company's 1994 Stock
Option Plan, as amended (the "Shares").
We have examined originals, or certified, conformed or reproduction copies,
of all such records, agreements, instruments and documents as we have deemed
relevant or necessary as the basis for the opinion hereinafter expressed. In all
such examinations, we have assumed the genuineness of all signatures on original
or certified copies and the conformity to original or certified copies of all
copies submitted to us as conformed or reproduction copies. As to various
questions of fact relevant to our opinion, we have relied upon statements or
certificates of public officials, officers or representatives of the Company and
others.
Based upon the foregoing, we are of the opinion that the Shares, when
issued, delivered and paid for in accordance with the terms of the respective
stock option agreements, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to said
Registration Statement on Form S-8.
Very truly yours,
/s/ Rich, May, Bilodeau & Flaherty, P.C.
Rich, May, Bilodeau & Flaherty, P.C.
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated August 2, 1999 (except as to Note 11,
which is as of January 18, 2000) relating to the financial statements, which
appears in HealthGate Data Corp.'s Registration Statement on Form S-1 (No.
333-76899). We also consent to the application of such report to the Financial
Statement Schedule for the three years ended December 31, 1998 listed under Item
16(b) of the Registration Statement on Form S-1 when such schedule is read in
conjunction with the financial statements referred to in our report. The audits
referred to in such report also included this schedule.
PricewaterhouseCoopers LLP
Boston, Massachusetts
March 2, 2000
