As filed with the Securities and Exchange Commission on December 18, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACCESS HEALTH, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 68-0163589
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(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
11020 WHITE ROCK ROAD
RANCHO CORDOVA, CALIFORNIA 95670
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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1989 INCENTIVE STOCK PLAN
SUPPLEMENTAL STOCK PLAN
INFORMED ACCESS SYSTEMS, INC. STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
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THOMAS E. GARDNER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ACCESS HEALTH, INC.
11020 WHITE ROCK ROAD
RANCHO CORDOVA, CALIFORNIA 95670
(916)-851-4000
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copy to:
BARRY E. TAYLOR, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(415) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE FEE
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Common Stock, $0.001 par value
To be issued under 1989 Incentive Stock
Plan.................................. 1,000,000 shares $42.58 (1) $42,580,000.00 $12,774.00
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To be issued under Supplemental Stock
Plan.................................. 1,000,000 shares $45.93 (2) $45,930,000.00 $13,779.00
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To be issued under Informed Access
Systems, Inc. Stock Option Plan....... 596,593 shares $ 1.85 (3) $ 1,103,697.05 $ 331.11
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Total.................................. 2,596,593 shares ________ $89,613,697.05 $26,884.11
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(1) Computed in accordance with Rule 457(h) under the Securities Act of 1933.
Such computation is based on the weighted average exercise price of $35.625
per share with respect to 141,251 outstanding options and of the price of
$33.625 per share with respect to 250,000 outstanding options and on the
price of $47.875 per share with respect to 608,749 authorized but unissued
shares underlying options, representing the average of the high and low
prices of Access Health, Inc. Common Stock on the Nasdaq National Market on
December 12, 1996.
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933.
Such computation is based on the weighted average exercise price of $35.625
per share with respect to 158,684 outstanding options and on the price of
$47.875 per share with respect to 841,316 authorized but unissued shares
underlying options, representing the average of the high and low prices of
Access Health, Inc. Common Stock on the Nasdaq National Market on December
12, 1996.
(3) Computed in accordance with Rule 457(h) under the Securities Act of 1933.
Such computation is based on the weighted average exercise price of $1.85
per share.
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ACCESS HEALTH, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed by Access
Health, Inc. (the "Company") with the Securities and Exchange Commission:
(1) The Company's Annual Report on Form 10-K/A for the fiscal year
ended September 30, 1995.
(2) The Company's quarterly report on Form 10-Q for the quarter ended
December 31, 1995.
(3) The Company's quarterly report on Form 10-Q for the quarter ended
March 31, 1996.
(4) The Company's quarterly report on Form 10-Q for the quarter ended
June 30, 1996.
(5) The Company's current report on Form 8-K dated November 18, 1996.
(6) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on December
24, 1991.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act on or after the date of this Registration
Statement and 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 in this
Registration Statement and to be part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Pursuant to Section 102(b)(7) of the Delaware General Corporation Law
(the "DGCL"), Article X of the Company's Restated Certificate of Incorporation
(the "Restated Certificate of Incorporation") eliminates the liability of the
Company's directors to the Company or its stockholders, except for liabilities
related to breach of duty of loyalty, actions not in good faith and certain
other liabilities.
Section 145 of the DGCL provides for indemnification by the Company of
its directors and officers. In addition, Article VI of the Company's Bylaws
requires the Company to indemnify any current or former director of officer to
the fullest extent permitted by the DGCL. In addition, the Company has entered
into indemnity agreements with its directors and executive officers that
obligate the Company to indemnify such directors and executive officers to the
fullest extent permitted by the DGCL. The Company also maintains officers' and
directors' liability insurance, which insures against liabilities that officers
and directors of the Company may incur in such capacities.
In addition, pursuant to an Agreement and Plan of Reorganization dated
as of September 3, 1996 (the "Merger Agreement") between the Company, Informed
Access and Access Acquisition Corp., a wholly-owned subsidiary of the Company,
(a copy of which is annexed to the Company's Proxy Statement/Prospectus dated
October 19, 1996 which is a part of the Company's Registration Statement on Form
S-4 filed with the Commission (File No. 333-13930)), the Company will cause
Informed Access, a wholly-owned subsidiary of the Company, to the fullest extent
permitted under applicable law, to indemnify each current or former officer or
director of Informed Access against and from any losses that are based on, or
that arise out of, the fact that such person is or was an officer or director of
Informed Access. In addition, the Merger Agreement provides that the Company
will use reasonable efforts to assist in the defense of any matter asserted in
any claim, action, suit, proceeding or investigation against such person where
such person is entitled to indemnification under applicable law.
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 Delaware General Corporation Law, the
Company's Certificate of Incorporation, the foregoing Bylaw provisions or the
Company's indemnification agreements, the Company has been informed 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company in a successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered
hereunder, the Company will, unless in the opinion of its counsel the question
has already 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.
Item 7. Exemption from Registration Claimed.
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Not applicable.
II-2
Item 8. Exhibits.
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Exhibit
Number Description
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4.1* 1989 Incentive Stock Plan and related agreements.
4.2 Supplemental Stock Plan and related agreements.
4.3 Informed Access Systems, Inc. Stock Option Plan and related
agreements.
5.1 Opinion of counsel as to legality of securities being
registered (see page II-7).
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Auditors (see page II-8).
24.1 Power of Attorney (see page II-6).
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* Incorporated by reference to Exhibit 10.1A to the Company's Registration
Statement on Form S-4 (File No. 333-13930), filed with the Commission on
October 11, 1996.
Item 9. Undertakings.
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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, 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 (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 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 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 such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
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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
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 undesigned, thereunto duly
authorized, in the City of Rancho Cordova, State of California, on December 12,
1996.
ACCESS HEALTH, INC.
By: /s/ Thomas E. Gardner
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Thomas E. Gardner
President and Chief Executive Officer
II-5
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas E. Gardner and John V. Crisan and
each of them, as his attorney-in-fact, with full power of substitution in each,
for him in any and all capacities to sign any amendments to this Registration
Statement on Form S-8, 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
substitutes, 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 below by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
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/s/ Thomas E. Gardner President, Chief Executive Officer December 12, 1996
- --------------------------- (Principal Executive Officer)
Thomas E. Gardner and Director
/s/ John V. Crisan Senior Vice President of Finance and Chief December 12, 1996
- --------------------------- Financial Officer
John V. Crisan (Principal Financial and Accounting Officer)
/s/ John R. Durant Director December 12, 1996
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John R. Durant, M.D.
/s/ Richard C. Miller Director December 12, 1996
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Richard C. Miller
/s/ Kenneth B. Plumlee Director December 12, 1996
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Kenneth B. Plumlee
/s/ Brent Rider Director December 12, 1996
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Brent Rider
/s/ Edward Rygiel Director December 12, 1996
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Edward Rygiel
/s/ Alice H. Lusk Director December 12, 1996
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Alice H. Lusk
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EXHIBIT 5.1
December 18, 1996
Access Health, Inc.
11020 White Rock Road
Rancho Cordova, California 95670
RE: REGISTRATION STATEMENT ON FORM S-8
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Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about December 18, 1996 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 2,596,593 shares of your Common Stock
(the "Shares") which are to be issued pursuant to the 1989 Incentive Stock Plan
(the "Plan"), the Supplemental Stock Plan (the "Supplemental Plan") and the
Informed Access Systems, Inc. Stock Option Plan (the "IAS Plan" and collectively
the "Plans"). As your legal counsel, we have examined the proceedings taken and
are familiar with the proceedings proposed to be taken by you in connection with
the sale and issuance of the Shares under the Plans and pursuant to the
Agreements.
It is our opinion that, when issued and sold in the manner referred to in
the Plans and pursuant to the agreements which accompany the Plans, the Shares
will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any Prospectus constituting a part thereof,
and any amendments thereto.
Sincerely yours,
/s/ WILSON SONSINI GOODRICH & ROSATI
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
II-7
EXHIBIT 23.2
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1989 Incentive Stock Plan, Supplemental Stock Plan and
the Informed Access Systems, Inc. Stock Option Plan of our report dated October
27, 1995, with respect to the consolidated financial statements and schedule of
Access Health, Inc. included in its Annual Report (Form 10-K/A) for the year
ended September 30, 1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Sacramento, California
December 17, 1996
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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EXHIBITS
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Registration Statement on Form S-8
ACCESS HEALTH, INC.
December 18, 1996
INDEX TO EXHIBITS
Exhibit No. Description
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4.1* 1989 Incentive Stock Plan.
4.2 Supplemental Stock Plan and related agreements.
4.3 Informed Access Systems, Inc. Stock Option Plan
and related agreements.
5.1 Opinion of Counsel as to legality of securities
being registered (see page II-7 of the
Registration Statement).
23.1 Consent of Counsel (contained in Exhibit 5.1
hereto).
23.2 Consent of Independent Auditors (see page II-8
of the Registration Statement).
24.1 Power of Attorney (see page II-6 of the
Registration Statement).
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* Incorporated by reference to Exhibit 10.1A to the Company's Registration
Statement on Form S-4 (File No. 333-13930), filed with the Commission on
October 11, 1996.