As filed with the Securities and Exchange Commission on June 28, 1999
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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REGISTRATION STATEMENT
ON FORM S-8
Under
THE SECURITIES ACT OF 1933
ONHEALTH NETWORK COMPANY
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
WASHINGTON 7372 41-1686038
(State of incorporation Primary Standard Industrial (IRS Employer
or organization) Classification Code Number Identification No.)
808 Howell Street, Suite 400
Seattle, Washington 98101
(206) 583-0100
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(Address, including zip code, and telephone number including area
code, of registrant's principal executive office)
Robert N. Goodman, Chief Executive Officer
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808 Howell Street, Suite 400
Seattle, Washington 98101
(206) 583-0100
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(Address of registrant's Principal Executive Offices)
ONHEALTH NETWORK COMPANY 1998-1999 NEW HIRE OPTION PLAN
(Full title of the plan)
----------------------------------------
Michael D. Conway
Vice President
808 Howell Street, Suite 400
Seattle, Washington 98101
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(Name and address of agent for service)
Copies of all communications to:
C. Kent Carlson
Christopher H. Cunningham
Preston Gates & Ellis LLP
5000 Columbia Seafirst Center
701 Fifth Avenue
Seattle, WA 98104
(206) 623-7580
<TABLE>
<CAPTION>
Title of each class of Proposed maximum Proposed maximum
securities to be Amount to be offering price per aggregate offering Amount of
registered registered share* price* registration fee*
- ------------------------ ------------ ------------------ ------------------ ------------------
<S> <C> <C> <C> <C>
Common shares par
value $.01 1,500,000 $8.5625 $12,843,750 $3,570.56
<FN>
*Estimated pursuant to Rule 457(c) solely for purposes of calculating
amount of registration fee, based upon the average of the high and low prices
reported on June 24, 1999, as reported on the Nasdaq Stock Market.
</FN>
</TABLE>
The Exhibit Index appears after the Signature Page of this Registration
Statement.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to eligible employees as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act"). Such documents are not required to be and are not filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) or
additional information about the OnHealth Network Company 1998-1999 New Hire
Plan are available without charge by contacting:
Michael D. Conway
Vice President
808 Howell Street, Suite 400
Seattle, Washington 98101
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby incorporates by reference into this Registration
Statement the documents listed below. In addition, all documents subsequently
filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"), prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents:
(a) The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act, or either the latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, that contains audited financial
statements for the Company's latest fiscal year for which such statements have
been filed, or the Company's effective Registration Statement on Form 10 filed
under the Exchange Act containing audited financial statements for the Company's
latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Company's document
referred to in (a) above.
<PAGE>
(c) The description of the Company's common stock, which is contained
in a Registration Statement of the Company filed on Form S-3, dated December 31,
1998, registration number 333-69989.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Shares offered hereby will be passed upon for the
Company by Preston Gates & Ellis LLP, 5000 Columbia Center, 701 Fifth Avenue,
Seattle, Washington 98104.
Item 6. Indemnification of Directors and Officers.
Article XII of the Articles of Incorporation of the Company authorizes
the Company to indemnify any present or former director or officer to the
fullest extent not prohibited by the Washington Business Corporation Act, public
policy or other applicable law. Chapter 23B.8.510 and .570 of the Washington
Business Corporation Act authorizes a corporation to indemnify its directors,
officers, employees, or agents in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
provisions permitting advances for expenses incurred) arising under the 1933
Act. The directors and officers of the Company are entitled to indemnification
by the Selling Shareholders against any cause of action, loss, claim, damage, or
liability to the extent it arises out of or is based upon the failure of the
Selling Shareholder (or his donees, legatees, or pledgees) to comply with the
Prospectus delivery requirements under the federal securities laws or any
applicable state securities laws or upon any untrue statement or alleged untrue
statement or omission or alleged omission made in this Registration Statement
and the Prospectus contained herein, as the same shall be amended or
supplemented, made in reliance upon or in conformity with written information
furnished to the Company by such Selling Shareholder.
In addition, the Company maintains directors' and officers' liability
insurance under which its directors and officers are insured against loss (as
defined in the policy) as a result of claims brought against them for their
wrongful acts in such capacities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
<PAGE>
Item 8. Exhibits.
The Exhibits to this registration statement are listed in the Index to
Exhibits on page 7.
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:
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;
(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.
(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 Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, 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
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.
<PAGE>
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 the City of Seattle, State of Washington, on this 25th day of
June, 1999.
ONHEALTH NETWORK COMPANY
\s\ ROBERT N. GOODMAN
-------------------------------------
Robert N. Goodman
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert N. Goodman, his or her
attorney-in-fact, for him or her in any and all capacities, to sign any
amendments to this Registration Statement, and to file the same, with exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorney-in-fact, or his substitute, may 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>
SIGNATURES TITLE DATE
- -------------------------------- --------------------------- ---------------
<S> <C> <C>
\s\ROBERT N. GOODMAN President, Chief Executive June 21, 1999
- -------------------------------- Officer, Director (Principal
Robert N. Goodman Executive Officer)
\s\ MICHAEL D. CONWAY Vice President June 21, 1999
- -------------------------------- Finance(Principal Financial and
Michael D. Conway Accounting Officer)
\s\ MICHAEL A. BROCHU Chairman of the Board of June 21, 1999
- -------------------------------- Directors
Michael A. Brochu
\s\ ANN KIRSCHNER
- -------------------------------- Director June 21, 1999
Ann Kirschner
\s\ RAM SHRIRAM
- ------------------------------- Director June 21, 1999
Ram Shriram
\s\ RICK THOMPSON Director June 21, 1999
- --------------------------------
Rick Thompson
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
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5 Opinion of Counsel regarding legality
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (Contained within Signature Page)
<PAGE>
EXHIBIT 5
OPINION OF COUNSEL REGARDING LEGALITY AND CONSENT OF COUNSEL
{LETTERHEAD OF PRESTON GATES & ELLIS LLP}
June 28, 1999
OnHealth Network Company
808 Howell Street, Suite 400
Seattle, Washington 98101
Re: OnHealth Network Company 1998-1999 New Hire Option Plan (the "Plan")
Ladies and Gentlemen:
We have acted as counsel to OnHealth Network Company (the "Company") in
connection with the registration with the Securities and Exchange Commission on
Form S-8 of shares of the Company's common stock, par value $.01 (the "Shares"),
options underlying which have been awarded to certain employees upon their
commencement of employment with the Company. In connection with that
registration, we have reviewed the proceedings of the Board of Directors of the
Company, and applicable committees of the Board of Directors, relating to the
issuance of the options and the proposed registration of the Shares issuable on
the exercise of such options, the Articles of Incorporation of the Company and
all amendments thereto, the Bylaws of the Company and all amendments thereto,
and such other documents and matters as we have deemed necessary to the
rendering of the following opinion.
Based upon that review, it is our opinion that the Shares when issued
in conformance with the terms and conditions of the Plan, will be legally
issued, fully paid, and nonassessable under the Washington Business Corporation
Act.
We do not find it necessary for the purposes of this opinion to cover,
and accordingly we express no opinion as to, the application of the securities
or blue sky laws of the various states as to the issuance and sale of the
Shares.
We consent to the use of this opinion in the registration statement
filed with the Securities and Exchange Commission in connection with the
registration of the Shares and to the reference to our firm under the heading
"Interests of Named Experts and Counsel" in the registration statement.
Very truly yours,
PRESTON GATES & ELLIS LLP
By \s\ GARY J. KOCHER
--------------------
Gary J. Kocher
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the OnHealth Network Company 1998-1999 New Hire Plan of our
report dated March 15, 1999, with respect to the financial statements and
schedule of OnHealth Network Company included in its Annual Report (Form 10-K,
as amended) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
\s\ERNST & YOUNG LLP
ERNST & YOUNG LLP
Seattle, Washington
June 22, 1999
