<PAGE>
As filed with the Securities and Exchange Commission on September 9, 1999
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
_______________________
LIQUID AUDIO, INC.
(Exact name of Registrant as specified in its charter)
_______________________
<TABLE>
<S> <C> <C>
Delaware 7373 77-0421089
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
810 Winslow Street
Redwood City, CA 94063
(650) 549-2000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
1996 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
_______________________
Gerald W. Kearby
Chief Executive Officer
Liquid Audio, Inc.
810 Winslow Street
Redwood City, CA 94063
(650) 549-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
_______________________
Copies to:
ALAN K. AUSTIN, Esq.
MARK REINSTRA, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
_______________________
Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
_______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Proposed
Maximum Proposed
Amount Offering Maximum
Title of Each Class of Securities to to be Price Aggregate Amount of
be Registered Registered Per Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
1996 Equity Incentive Plan
Common Stock, $0.001 par value
(currently outstanding options) (1)............ 1,328,373 shares $ 5.7023277 $ 7,574,818.15 $ 2,105.80
- ----------------------------------------------------------------------------------------------------------------------------------
1996 Equity Incentive Plan
Common Stock, $0.001 par value
(options available for future grant) (2)....... 1,122,333 shares $ 26.5625 $ 29,811,970.32 $ 8,287.73
- ----------------------------------------------------------------------------------------------------------------------------------
1996 Equity Incentive Plan
Common Stock, $0.001 par value
(outstanding stock subject to repurchase) (3).. 212,498 shares $ 26.5625 $ 5,644,478.13 $ 1,569.17
- ----------------------------------------------------------------------------------------------------------------------------------
Total 1996 Equity Incentive Plan shares
registered..................................... 2,663,204 shares $ 43,031,266.60 $ 11,962.70
- ----------------------------------------------------------------------------------------------------------------------------------
1999 Employee Stock Purchase Plan
Common Stock, $0.001 par value (4)............. 500,000 shares $ 22.578125 $ 11,289,062.50 $ 3,138.36
- ----------------------------------------------------------------------------------------------------------------------------------
Total Registration Fees $ 15,101.06
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</TABLE>
(1) The computation is based upon the weighted average exercise price per share
of $5.7023277 as to 1,328,373 outstanding but unexercised options to
purchase Common Stock under the 1996 Equity Incentive Plan (the "Currently
Outstanding Options").
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
remaining 1,122,333 shares of Common Stock authorized for issuance pursuant
to the 1996 Equity Incentive Plan, solely for the purpose of calculating
the registration fee. No options have been granted with respect to such
shares. The computation is based upon the average of the high and low price
of the Common Stock as reported on the Nasdaq National Market on September
2, 1999 because the price at which the options to be granted in the future
may be exercised is not currently determinable.
(3) The 1996 Equity Incentive Plan allows for recipients of options to exercise
options prior to their being vested, subject to the Company's right to
repurchase unvested shares, which right lapses over time. Should such
outstanding shares be repurchased, they may be reissued as options to
purchase Common Stock pursuant to the 1996 Equity Incentive Plan. The
Proposed Maximum Offering Price Per Share has been estimated in accordance
with Rule 457(h) under the Securities Act of 1933 as to the 212,498 shares
of Common Stock subject to repurchase pursuant to the 1996 Equity Incentive
Plan, solely for the purpose of calculating the registration fee. Such
shares have not been repurchased by the Company and remain outstanding. The
computation is based upon the average of the high and low price of the
Common Stock as reported on the Nasdaq National Market on September 2, 1999
because the price at which the options to be granted in the future may be
exercised is not currently determinable.
(4) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
85% (see explanation in following sentence) of the average of the high and
low price of the Common Stock as reported on the Nasdaq National Market on
September 2, 1999 because the price at which the options to be granted in
the future may be exercised is not currently determinable. Pursuant to the
Employee Stock Purchase Plan, which plan is incorporated by reference
herein, the Purchase Price of a share of Common Stock shall mean an amount
equal to 85% of the Fair Market Value of a share of Common Stock on the
Enrollment Date or the Exercise Date, whichever is lower.
================================================================================
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
-------------------------------------
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The audited financial statements for the Registrant's fiscal year ended
December 31, 1998 contained in the Prospectus, dated July 9, 1999,
filed pursuant to Rule 424(b)(4) under the Securities Act of 1933 on
July 9, 1999.
(b) The description of the Common Stock of the Registrant that is contained
in the Registration Statement on Form 8-A filed pursuant to Section 12
of the Exchange Act on May 4, 1999.
(c) The Quarterly Report for the quarterly period ended June 30, 1999 on
Form 10-Q filed pursuant to Section 13 and 15(d) of the Exchange Act on
August 13, 1999.
(c) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing 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 the Registration Statement and to be
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.
--------------------------------------
Issac J. Vaughn, a member of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, is Assistant Secretary of the Registrant. Wilson Sonsini Goodrich &
Rosati is corporate counsel to the Registrant.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Registrant has adopted provisions in its Certificate of Incorporation
that eliminate the personal liability of its directors and officers for monetary
damages arising from a breach of their fiduciary duties in certain circumstances
to the fullest extent permitted by law and authorizes the Registrant to
indemnify its directors and officers to the fullest extent permitted by law.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by the General
Corporation Law of Delaware, including circumstances in which indemnification is
otherwise discretionary under Delaware law. Section 145 of the General
Corporation Law of Delaware provides for the indemnification of officers,
directors and other corporate agents in terms sufficiently broad to indemnify
such persons, under certain circumstances, for certain liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933
(the "Securities Act"). The Registrant has entered into indemnification
agreements to such effect with its officers and directors containing provisions
which are in some respects broader than the specific indemnification provisions
contained in the General Corporation Law of Delaware. The indemnification
agreements may require the Company, among other things, to indemnify such
officers and directors against certain liabilities that may arise by reason of
their status or service as directors or officers (other than liabilities arising
from willful misconduct of a
II-1
<PAGE>
culpable nature) and to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The Exhibits listed on the accompanying Index to Exhibits are filed as part
hereof, or incorporated by reference into, this Registration Statement. (See
Exhibit Index below).
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, 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 an 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
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
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.
II-2
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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 Palo Alto, State of California on September 9, 1999.
LIQUID AUDIO, INC.
By: /s/ GARY J. IWATANI
--------------------------
Gary J. Iwatani
Senior Vice President and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gerald W. Kearby and Gary J. Iwatani,
jointly and severally, his or her attorneys-in-fact, each with the power of
substitution, for him or her 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 each of said
attorneys-in-fact, or his substitute or 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 by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ GERALD W. KEARBY President, Chief Executive Officer September 9, 1999
- --------------------------------- and Director (Principal
Gerald W. Kearby Executive Officer)
/s/ GARY J. IWATANI Senior Vice President and Chief September 9, 1999
- --------------------------------- Financial Officer (Principal
Gary J. Iwatani Financial and Accounting
Officer)
/s/ PHILIP R. WISER Senior Vice President of September 9, 1999
- --------------------------------- Engineering, Chief Technical
Philip R. Wiser Officer and Director
/s/ ANN WINBLAD Director September 9, 1999
- ---------------------------------
Ann Winblad
/s/ SILVIA KESSEL Director September 9, 1999
- ---------------------------------
Silvia Kessel
/s/ SANFORD R. CLIMAN Director September 9, 1999
- ---------------------------------
Sanford R. Climan
/s/ ERIC P. ROBISON Director September 9, 1999
- ---------------------------------
Eric P. Robison
</TABLE>
_________________
* The employee benefit plans being registered pursuant to this Registration
Statement are subject to administration by the Board of Directors of the
Registrant.
II-3
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INDEX TO EXHIBITS
Sequentially
Numbered
Exhibit Number Exhibit Document Page
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4.1* Certificate of Incorporation of Registrant
4.2* Bylaws of Registrant
4.3* 1996 Equity Incentive Plan
4.4* 1999 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as to the legality
of securities being registered (Counsel to the
Registrant)
23.1 Consent of PricewaterhouseCoopers LLP
(Independent Accountants)
23.2 Consent of Wilson Sonsini Goodrich & Rosati,
Professional Corporation (contained in Exhibit
5.1 hereto)
24.1 Power of Attorney (see page II-3)
- -----------------
* Incorporated by reference to the Company's Registration Statement on Form S-1
(File No. 333-77707), effective July 9, 1999.
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[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
Exhibit 5.1
-----------
September 8, 1999
Liquid Audio, Inc.
810 Winslow Street
Redwood City, CA 94063
Re: Registration Statement on Form S-8
Ladies and 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 September 8, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of the 1996 Equity Incentive Plan (as to
2,663,204 shares) and of the 1999 Employee Stock Purchase Plan (as to 500,000
shares) (collectively, the "Plans" and the "Shares" as appropriate). As legal
counsel for Liquid Audio, Inc., we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
issuance and sale of the Shares pursuant to the Plans.
It is our opinion that the Shares, when issued and sold in the manner
described in the Plans and pursuant to the agreement that accompanies each grant
under the Plans, will be legally and validly issued, fully-paid and non-
assessable.
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 and any amendments thereto.
Very truly yours,
/s/ WILSON SONSINI GOODRICH & ROSATI
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE>
Exhibit 23.1
------------
[LETTERHEAD OF PRICEWATERHOUSECOOPERS LLP]
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
February 26, 1999 except as to Note 10 which is as of July 9, 1999, relating to
the financial statements of Liquid Audio, Inc., which appears in Liquid Audio,
Inc.'s Prospectus dated July 9, 1999.
/s/ PRICEWATERHOUSECOOPERS LLP
San Jose, CA
September 8, 1999
