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As filed with the Securities and Exchange Commission on May 19, 2000
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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HEALTHSTREAM, INC.
(Exact name of Registrant as Specified in its Charter)
TENNESSEE 62-1443555
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(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
209 10TH AVENUE SOUTH, SUITE 450
NASHVILLE, TENNESSEE 37203
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(Address of Principal Executive Offices)
HEALTHSTREAM, INC. 1994 EMPLOYEE STOCK OPTION PLAN
HEALTHSTREAM, INC. 2000 STOCK INCENTIVE PLAN
HEALTHSTREAM, INC. EMPLOYEE STOCK PURCHASE PLAN
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(Full Title of the Plans)
ROBERT H. LAIRD, JR.
209 10TH AVENUE SOUTH, SUITE 450
NASHVILLE, TENNESSEE 37203
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(Name and Address of Agent for Service)
(615) 301-3114
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(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE REGISTERED AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED(1) SHARE PRICE REGISTRATION FEE
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1994 EMPLOYEE STOCK OPTION PLAN
Common Stock, no par value 3,887,267 shares $ 4.68(2) $ 18,184,489 $ 4,801
Common Stock, no par value 2,284 shares $ 7.00(3) $ 15,988 $ 5
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2000 STOCK INCENTIVE PLAN
Common Stock, no par value 60,000 shares $ 9.00(2) $ 540,000 $ 143
Common Stock, no par value 4,940,000 shares $ 7.00(3) $ 34,580,000 $ 9,130
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EMPLOYEE STOCK PURCHASE PLAN
Common Stock, no par value 0 shares $ 0(2) $ 0 $ 0
Common Stock, no par value 1,000,000 shares $ 7.00(3) $ 7,000,000 $ 1,848
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under either of the Plans being
registered pursuant to this Registration Statement by reason of any
stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding shares of
Common Stock.
(2) The offering price is estimated solely for the purpose of calculating
the amount of the registration fee in accordance with Rule 457(h) under
the Securities Act. The computation is based on the weighted average
per share exercise price (rounded to the nearest cent) of outstanding
options under the referenced plan, the shares issuable under which are
registered hereby.
(3) The offering price is estimated solely for the purpose of calculating
the amount of the registration fee in accordance with Rule 457(h) under
the Securities Act. The computation with respect to unissued options is
based on the average of the high and low prices of the Registrant's
Common Stock as reported on The Nasdaq National Market on May 17, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Prospectus, dated April 10, 2000, filed with
the Commission pursuant to Rule 424(b) under the Securities
Act of 1933, as amended, which contains audited financial
statements for the Registrant's latest fiscal year for which
such statements have been filed.
(b) Not applicable.
(c) The description of the Registrant's Common Stock contained in
the Registration Statement on Form 8-A, dated October 18,
1999, including all amendments and reports filed for the
purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14, and 15(d) of the Securities Exchange Act of 1934, as amended, after the date
hereof and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered 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 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.
The Registrant's charter provides that, to the fullest extent permitted by
the Tennessee Business Corporation Act, or TBCA, a director will not be liable
to the Registrant or its shareholders for monetary damages for breach of his or
her fiduciary duty as a director. Under the TBCA, directors have a fiduciary
duty which is not eliminated by this provision in the Registrant's charter. In
some circumstances, equitable remedies such as injunctive or other forms of
nonmonetary relief will remain available. In addition, each director will
continue to be subject to liability under the TBCA for:
- breach of the director's duty of loyalty;
- acts or omissions which are found by a court of competent
jurisdiction to be not in good faith or knowing violations of
law;
- actions leading to improper personal benefit to the director;
and
- payment of dividends that are prohibited by the TBCA.
The Registrant's charter provision does not affect the directors'
responsibilities under any other laws, such as the Federal securities laws or
state or Federal environmental laws.
The TBCA provides that a corporation may indemnify any director or officer
against liability incurred in connection with a proceeding if the director or
officer acted in good faith or reasonably believed, in the case of conduct in
his or her official capacity with the corporation, that the conduct was in the
corporation's best interests. In all other
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civil cases, a corporation must indemnify a director or officer who reasonably
believed that his or her conduct was not opposed to the best interests of the
corporation. In connection with any criminal proceedings, a corporation may
indemnify any director or officer who had no reasonable cause to believe that
his or her conduct was unlawful.
In actions brought by or in the right of the corporation, however, the
TBCA does not allow indemnification if the director or officer is adjudged to be
liable to the corporation. Similarly, the TBCA prohibits indemnification of a
director or officer if the director or officer is adjudged liable in a
proceeding because a personal benefit was improperly received.
In cases when the director or officer is wholly successful, on the merits
or otherwise, in the defense of any proceeding brought because of his or her
status as a director or officer of a corporation, the corporation must indemnify
the director or officer against reasonable expenses incurred in the proceeding.
Also, the TBCA provides that a court may order a corporation to indemnify a
director or officer for reasonable expense if, in consideration of all relevant
circumstances, the court determines that the individual is fairly and reasonably
entitled to indemnification, whether or not the individual acted in good faith
or reasonably believed his or her conduct was in the corporation's best
interest.
The Registrant's bylaws provide that it shall indemnify and advance
expenses to its directors and officers to the fullest extent permitted by the
TBCA. The Registrant also intends to maintain insurance to protect any director
or officer against any liability and has entered into indemnification agreements
with its directors to create a contractual obligation to indemnify its
directors. These agreements, among other things, indemnify the Registrant's
directors for some expenses, judgments and fines and amounts paid in settlement,
actually and reasonably incurred by any of these persons in any action, suit or
proceeding arising out of the person's services as the Registrant's director.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
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4.1 Form of certificate representing the common stock, no par
value per share of HealthStream, Inc. - Incorporated by
reference to Registration Statement on Form S-1 (File No.
333-88939).
4.2 Article 7 of the Fourth Amended and Restated Charter -
Incorporated by reference to Registration Statement on Form
S-1 (File No. 333-88939).
4.3 Article II of the Amended and Restated Bylaws - Incorporated
by reference to Registration Statement on Form S-1 (File No.
333-88939).
4.4 Amended and Restated Investors' Rights Agreement, dated March
14, 2000, between HealthStream, Inc. and some of its
shareholders - Incorporated by reference to Registration
Statement on Form S-1 (File No. 333-88939).
5.1 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Ernst & Young LLP
23.2 Consent of Bass, Berry & Sims PLC (included in opinion filed
as Exhibit 5.1)
24.1 Power of Attorney (included on Page II-5)
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
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(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 purposes 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.
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 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.
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.
[SIGNATURE PAGE FOLLOWS]
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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 the City of Nashville, State of Tennessee, on this 19th day of
May, 2000.
HealthStream, Inc.
By: /s/ Robert A. Frist, Jr.
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Robert A. Frist Jr.
Chairman and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Robert A. Frist Jr. and Robert H. Laird,
Jr., and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, 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, 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 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 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.
Signature Title Date
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/s/ Robert A. Frist, Jr. Chief Executive Officer and May 19, 2000
- ------------------------------------ Chairman (Principal Executive
Robert A. Frist Jr. Officer)
/s/ Jeffrey L. McLaren President and Director May 19, 2000
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Jeffrey L. McLaren
/s/ Arthur E. Newman Chief Financial Officer and May 19, 2000
- ------------------------------------ Senior Vice President (Principal
Arthur E. Newman Financial and Accounting Officer)
/s/ Charles N. Martin, Jr. Director May 19, 2000
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Charles N. Martin, Jr.
/s/ Thompson S. Dent Director May 19, 2000
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Thompson S. Dent
/s/ M. Fazle Husain Director May 19, 2000
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M. Fazle Husain
/s/ John H. Dayani, Sr., Ph.D Director May 19, 2000
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John H. Dayani, Sr., Ph.D
Director
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James F. Daniell, M.D.
/s/ William Stead, M.D. Director May 19, 2000
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William Stead, M.D.
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EXHIBIT INDEX
Exhibit Number Description
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4.1 Form of certificate representing the common stock, no par
value per share of HealthStream, Inc. - Incorporated by
reference to Registration Statement on Form S-1 (File No.
333-88939).
4.2 Article 7 of the Fourth Amended and Restated Charter -
Incorporated by reference to Registration Statement on Form
S-1 (File No. 333-88939).
4.3 Article II of the Amended and Restated Bylaws - Incorporated
by reference to Registration Statement on Form S-1 (File No.
333-88939).
4.4 Amended and Restated Investors' Rights Agreement, dated March
14, 2000, between HealthStream, Inc. and some of its
shareholders - Incorporated by reference to Registration
Statement on Form S-1 (File No. 333-88939).
5.1 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Ernst & Young LLP
23.2 Consent of Bass, Berry & Sims PLC (included in opinion filed
as Exhibit 5.1)
24.1 Power of Attorney (included on Page II-5)
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EXHIBIT 5.1
B A S S, B E R R Y & S I M S P L C
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AT LAW
315 DEADERICK STREET, SUITE 2700
NASHVILLE, TENNESSEE 37238-0002
(615) 742-6200
www.bassberry.com
KNOXVILLE OFFICE: MEMPHIS OFFICE:
1700 RIVERVIEW TOWER THE TOWER AT PEABODY PLACE
KNOXVILLE, TN 37901-1509 100 PEABODY PLACE, SUITE 950
(423) 521-6200 MEMPHIS, TN 38103-2625
(901) 543-5900
May 19, 2000
HealthStream, Inc.
209 10th Avenue, Suite 450
Nashville, Tennessee 37203
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as your counsel in the preparation of the Registration
Statement on Form S-8 (the "Registration Statement") relating to the Company's
1994 Employee Stock Option Plan, 2000 Stock Incentive Plan and Employee Stock
Purchase Plan (the "Plans") filed by you with the Securities and Exchange
Commission relating to an aggregate of 9,130,506 shares (the "Shares") of common
stock, no par value per share, issuable pursuant to the Plans.
In so acting we have examined and relied upon such records, documents
and other instruments as in our judgment are necessary or appropriate in order
to express the opinions hereinafter set forth and have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, and the conformity to original documents of all documents submitted
to us as certified or photostatic copies.
Based on the foregoing, we are of the opinion that the Shares, when
issued pursuant to and in accordance with the Plans, will be validly issued,
fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the HealthStream, Inc. 1994 Employee Stock Option Plan, the
HealthStream, Inc. 2000 Stock Incentive Plan and the HealthStream, Inc. Employee
Stock Purchase Plan, of (1) our report dated January 22, 2000, except for Note
12, as to which the date is April 5, 2000, with respect to the financial
statements of HealthStream, Inc., and (2) our report dated September 17, 1999,
with respect to the financial statements of SilverPlatter Education, Inc.,
included in Amendment No. 5 to the Registration Statement (Form S-1 No.
333-88939) and Prospectus of HealthStream, Inc. dated April 10, 2000, filed with
the Securities and Exchange Commission.
Nashville, Tennessee
May 17, 2000
