<PAGE> 1
As filed with the Securities and Exchange Commission on April 26, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NETRADIO CORPORATION
(Exact name of registrant as specified in its charter)
Minnesota 41-1819471
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Riverplace Exposition Hall
43 Main Street, Southeast, Suite 149
Minneapolis, Minnesota 55414
(Address of Principal Executive Offices)
NETRADIO CORPORATION 1998 STOCK OPTION AND INCENTIVE PLAN
(full title of the plan)
Edward A. Tomechko Copy to:
Chief Executive Officer and President Matthew J. Knopf, Esq.
NetRadio Corporation Dorsey & Whitney LLP
Riverplace Exposition Hall Pillsbury Center South
43 Main Street Southeast, Suite 149 220 South Sixth Street
Minneapolis, Minnesota Minneapolis, Minnesota 55402-1498
(612) 378-2211 (612) 340-5603
(Telephone number, including area code, of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
securities Amount to be Maximum Offering Maximum Aggregate Amount of
to be registered registered (1) Price per Share (2) Offering Price (2) Registration Fee (2)
<S> <C> <C> <C> <C>
Common Stock
(no par value) 2,000,000 $2.9375 $5,875,000 $1,551
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The number of shares being registered represents the number of shares
of Common Stock that may be issued pursuant to the NetRadio Corporation
1998 Stock Option and Incentive Plan (the "Plan").
(2) Determined pursuant to Rule 457(c), based on the average of the high
and low sale prices of the Common Stock as reported on the Nasdaq
National Market System on April 24, 2000
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have been filed by NetRadio Corporation
(the "Company") with the Securities and Exchange Commission, are hereby
incorporated by reference in this Registration Statement:
1. Annual Report on Form 10-K for the year ended December 31, 1999;
2. The Proxy Statement of the Company for the annual meeting of
stockholders held May 18, 1999; and
4. The description of Common Stock contained in the Company's
Registration Statement on Form 8-A (File No. 0-27575) filed with the Commission
pursuant to Section 12 (g) of the Exchange Act on October 7, 1999, and any
amendment or report updating such description filed subsequent to the date of
such Registration Statement and prior to the termination of the offering
described herein.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date hereof and prior to the filing of a post-effective
amendment 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 respective
dates of filing of such documents. Any statement contained herein or in a
document all or part of which is incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
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 302A.521 of the Minnesota Business Corporation Act provides
that, unless prohibited or limited by a corporation's articles of incorporation
or bylaws, a corporation must indemnify its current and former officers,
directors, employees and agents against expenses (including attorneys' fees),
judgments, penalties, fines and amounts paid in settlement and which were
incurred in connection with actions, suits or proceedings in which such person
are parties by reason of the fact that they are or were an officer, director,
employee or agent of the corporation, if they (i) have not been indemnified by
another organization, (ii) acted in good faith, (iii) received no improper
personal benefit, (iv) in the case of a criminal proceeding, had no reasonable
cause to believe the conduct was unlawful, and (v) reasonably believed that the
conduct was in the best interests of the corporation. Section 302A.521 also
permits a corporation to purchase and maintain insurance on behalf of its
officers, directors, employees and agents against any liability which may be
asserted against, or incurred by, such persons in their capacities as officers,
directors, employees and agents of the corporation, whether or not the
corporation would have been required to indemnify the person against the
liability under the provisions of such section.
Article VI of our bylaws provides that we may indemnify each person who
is or was a director or officer to the full extent permitted by the MBCA.
Article VI also provides that we may, but we are not required to, indemnify
employees and agents (other than directors and officers) to the full extent and
in the manner permitted by the MBCA.
<PAGE> 3
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Counsel to the Company (included in Exhibit 5.1)
23.2 Consent of Independent Accountants
24.1 Power of Attorney (included in signature page)
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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of 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
Securities and Exchange Commission pursuant to Rule 424(b)
of the Securities Act if, in the aggregate, the changes in
volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) 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.
Provided, however, that paragraphs A(1)(i) and A(1)(ii) above will 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 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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.
<PAGE> 4
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 other 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 Securities Act and will be governed by
the final adjudication of such issue.
<PAGE> 5
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 Minneapolis, State of Minnesota, on the 26th day of
April, 2000.
NETRADIO CORPORATION
By /s/Edward A. Tomechko
-------------------------------------
Edward A. Tomechko
Chief Executive Officer
KNOW ALL BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Edward A. Tomechko and Michael Wise, and
each of them, his or her true and lawful attorneys-in-fact and agents, each
acting alone, 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 a
Registration Statement on Form S-8 of NetRadio Corporation (the "Company")
relating to this Registration Statement, and any and all amendments thereto,
including post-effective amendments, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission and with such state securities commissions and other
agencies as necessary, granting unto said attorneys-in-fact and agents, each
acting alone, full power and authority to do and perform 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, 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 indicated on the 26th day of April, 2000.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Edward A. Tomechko Chief Executive Officer
- ---------------------------------------------- (principal executive officer)
Edward A. Tomechko
/s/ Michael P. Wise Chief Financial Officer
- ---------------------------------------------- (principal financial officer)
Michael P. Wise
/s/ Eric H. Paulson Director
- ----------------------------------------------
Eric H. Paulson
/s/ Donavan W. Pederson Director
- ----------------------------------------------
Donavan W. Pederson
/s/ James Caparro Director
- ----------------------------------------------
James Caparro
/s/ Charles E. Cheney Director
- ----------------------------------------------
Charles E. Cheney
/s/ Marc H. Kalman Director
- ----------------------------------------------
Marc H. Kalman
/s/ Gene McCaffrey Director
- ----------------------------------------------
Gene McCaffery
</TABLE>
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<S> <C>
5.1 OPINION OF DORSEY & WHITNEY LLP
23.1 CONSENT OF COUNSEL TO THE COMPANY (INCLUDED IN EXHIBIT 5.1)
23.2 CONSENT OF INDEPENDENT ACCOUNTANTS
24.1 POWER OF ATTORNEY (INCLUDED IN SIGNATURE PAGE)
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF DORSEY & WHITNEY LLP]
April 26, 2000
NetRadio Corporation
Riverplace Exposition Hall
43 Main Street Southeast, Suite 149
Minneapolis, Minnesota 55414
Ladies and Gentlemen:
We have acted as counsel to NetRadio Corporation, a Minnesota
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 (the "Registration Statement") relating to the sale by the Company from time
to time of up to 2,000,000 shares of Common Stock, no par value per share, of
the Company (the "Shares"), issuable pursuant to the Company's 1998 Stock Option
and Incentive Plan (the "Plan").
We have examined such documents and have reviewed such questions of law
as we have considered necessary and appropriate for the purposes of the opinions
set forth below.
In rendering our opinions, we have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all signatures and
the conformity to authentic originals of all documents submitted to us as
copies. We have also assumed the legal capacity for all purposes relevant hereto
of all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such parties. As to questions of
fact material to our opinions, we have relied upon certificates of officers of
the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Dorsey & Whitney LLP
MJK
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EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the NetRadio Corporation 1998 Stock Option and Incentive
Plan, of our report dated January 21, 2000 with respect to the financial
statements of NetRadio Corporation included in its Annual Report (Form 10-K) for
the year ended December 31, 1999, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
April 24, 2000
