<PAGE>
As filed with the Securities and Exchange Commission on September 28, 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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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
incorporation or (Primary Standard Industrial (I.R.S. Employer
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)
2000 NONSTATUTORY STOCK OPTION PLAN
(Full title of the Plans)
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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)
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Copies to:
Mark Reinstra, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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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]
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
Proposed
Proposed Maximum
Title of Each Class of Maximum Aggregate Amount of
Securities to Amount to be Offering Price Offering Registration
be Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
2000 Nonstatutory Stock
Option Plan Common
Stock, $0.001 par value
(currently outstanding
options)(1)............ 161,740 shares $11.375 $1,839,792.50 $485.71
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2000 Nonstatutory Stock
Option Plan Common
Stock, $0.001 par value
(options available for
future grant)(2)....... 338,260 shares $ 4.656 $1,574,938.56 $415.78
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Total 2000 Nonstatutory
Stock Option Plan
shares registered...... 500,000 shares $3,414,731.06 $901.49
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Total Registration
Fees................... $901.49
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(1) The computation is based upon the exercise price per share of $11.375 as to
161,740 outstanding but unexercised options to purchase Common Stock under
the 2000 Nonstatutory Stock Option Plan.
(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 338,260 shares of Common Stock authorized for issuance pursuant
to the 2000 Nonstatutory Stock Option 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 26, 2000 because the price at which the options to be granted in
the future may be exercised is not currently determinable.
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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 Registrant's Annual Report, filed pursuant to Sections 13 and 15(d)
under the Exchange Act on March 30, 2000, for the fiscal year ended
December 31, 1999.
(b) The Quarterly Report for the quarterly period ended March 31, 2000 on
Form 10-Q filed pursuant to Sections 13 and 15(d) of the Exchange Act
on May 15, 2000.
The Quarterly Report for the quarterly period ended June 30, 2000 on
Form 10-Q filed pursuant to Sections 13 and 15(d) of the Exchange Act
on August 14, 2000.
(c) 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.
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 thereof 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 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,
as amended (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 culpable nature)
and to advance their expenses incurred as a result of any proceeding against
them as to which they could be indemnified.
II-1
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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
<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 Palo Alto, State of California on September 28, 2000.
Liquid Audio, Inc.
/s/ GARY J. IWATANI
By: _________________________________
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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ GERALD W. KEARBY President, Chief Executive September 28, 2000
______________________________________ Officer and Director
Gerald W. Kearby (Principal Executive
Officer)
/s/ GARY J. IWATANI Senior Vice President and September 28, 2000
______________________________________ Chief Financial Officer
Gary J. Iwatani (Principal Financial and
Accounting Officer)
/s/ PHILIP R. WISER Senior Vice President of September 28, 2000
______________________________________ Engineering, Chief
Philip R. Wiser Technical Officer and
Director
/s/ ANN WINBLAD Director September 28, 2000
______________________________________
Ann Winblad
/s/ SILVIA KESSEL Director September 28, 2000
______________________________________
Silvia Kessel
/s/ SANFORD R. CLIMAN Director September 28, 2000
______________________________________
Sanford R. Climan
</TABLE>
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* 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
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<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Document Page
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<C> <S> <C>
4.1* Certificate of Incorporation of Registrant
4.2** Restated Bylaws of Registrant
4.3** 2000 Nonstatutory Stock Option 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)
</TABLE>
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* Incorporated by reference to the Company's Registration Statement on Form
S-1 and all amendments thereto filed on May 4, 1999 (File No. 333-77707),
and declared effective on July 8, 1999.
** Incorporated by reference to the Company's Quarterly Report for the
quarterly period ended June 30, 2000 on Form 10-Q filed pursuant to
Sections 13 and 15(d) of the Exchange Act on August 14, 2000.
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