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As filed with the Securities and Exchange Commission on March 13, 1997
Registration No. --
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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REGISTRATION STATEMENT
on
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
------------------------------
MACROVISION CORPORATION
[Exact name of Registrant as specified in its charter]
Delaware 77-0156161
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
------------------------------
1341 Orleans Drive
Sunnyvale, California 94089
(408) 743-8600
(Address and Telephone Number of Principal Executive Offices)
MACROVISION CORPORATION STOCK OPTION PLAN
MACROVISION CORPORATION 1996 EQUITY INCENTIVE PLAN
MACROVISION CORPORATION 1996 EMPLOYEE STOCK PURCHASE PLAN
MACROVISION CORPORATION 1996 DIRECTORS STOCK OPTION PLAN
(Full title of the Plans)
------------------------------
Victor A. Viegas
Chief Financial Officer
Macrovision Corporation
1341 Orleans Drive
Sunnyvale, California 94089
(408) 743-8600
(Name, address and telephone number of agent for service)
Copies to:
David W. Herbst, Esq.
Sanjiv S. Dhawan, Esq.
Wise & Shepard LLP
3030 Hansen Way, Suite 100
Palo Alto, California 94304
(415) 856-1200
Approximate date of commencement of proposed sales:
From time to time after the effective date
of this Registration Statement
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This registration statement, including all exhibits and attachments, contains
18 pages. The exhibit index may be found on page 10 of the consecutively
numbered pages of the registration statement.
CALCULATION OF REGISTRATION FEE
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Title of each Proposed Proposed Amount of
class of Amount to be maximum maximum registration
securities to be registered(2) offering price aggregate fee
registered (1) per share offering
price(3)
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Common Stock, 1,280,390 (3) $7,404,353.10 $2,243.74
Par Value $0.001
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(1) The securities to be registered include options and rights to acquire such
Common Stock.
(2) A maximum of 394,655 shares of common stock were reserved for issuance
under the Macrovision Corporation 1996 Equity Incentive Plan (the "Equity
Incentive Plan"), a maximum of 140,000 shares of common stock were reserved
for issuance under the Macrovision Corporation 1996 Employee Stock Purchase
Plan (the "Employee Stock Purchase Plan"), and a maximum of 60,000 shares
were reserved for issuance under the Macrovision Corporation 1996 Directors
Stock Option Plan (the "Directors Stock Option Plan"). All shares reserved
for issuance under the Equity Incentive Plan, the Employee Stock Purchase
Plan, and the Directors Stock Option Plan are being registered hereunder.
Options to purchase an aggregate of 685,735 shares of common stock are
outstanding under the Macrovision Corporation Stock Option Plan (the "Stock
Option Plan"), all of which also are being registered hereunder.
(3) This estimate is made pursuant to Rule 457(h) solely for purposes of
calculating the registration fee, and is determined according to the
following offering price information: (i) under the Equity Incentive Plan
all 394,655 shares of common stock are reserved for issuance upon exercise
of options, rights and other awards to be granted in the future; (ii) under
the Employee Stock Purchase Plan, all 140,000 shares of common stock are
reserved for issuance upon exercise of purchase rights to be granted in the
future; (iii) under the Directors Stock Option Plan, all 60,000 shares of
common stock are reserved for issuance upon exercise of options to be
granted in the future; and (iv) under the Stock Option Plan, 611,900 shares
of common stock are subject to outstanding options with an exercise price
of $2.70 per share, 42,768 shares of common stock are subject to
outstanding options with an exercise price of $7.20 per share, 27,734
shares of common stock are subject to outstanding options with an exercise
price of $2.25 per share, and 3,333 shares of common stock are subject to
outstanding options with an exercise price of $9.00 per share. Pursuant to
Rule 457(h), for 394,655 shares of common stock under the Equity Incentive
Plan, 140,000 shares of common stock under the Employee Stock Purchase
Plan, and 60,000 shares of common stock under the Directors Stock Option
Plan, the Proposed Maximum Offering Price Per Share is $9.00 per share of
common stock.
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PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have heretofore been filed with the
Securities and Exchange Commission (the "Commission") by Macrovision
Corporation, a Delaware Corporation (the "Company"), are hereby incorporated by
reference in this Registration Statement:
(a) The final prospectus used in connection with the Company's initial
public offering of the Company's common stock, par value $0.001 per share (the
"Common Stock"), as filed with the Commission pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), on March 13, 1997.
The prospectus is included in the Company's Registration Statement on Form
SB-2 (No. 333-19373).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the document referred to in (a) above.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, as filed with the Commission on January 22,
1997, including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date that this
Registration Statement is filed with the Commission and prior to the filing of a
post-effective amendment to this Registration Statement 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 a part hereof from the respective dates of
filing of such documents (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents"); PROVIDED, HOWEVER,
that the documents enumerated above or subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act in each
year during which the offering made by this Registration Statement is in effect
prior to the filing with the Commission of the Registrant's Annual Report on
Form 10-K
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covering such year shall not be Incorporated Documents or be incorporated by
reference in this Registration Statement or be a part hereof from and after the
filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document 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 other subsequently filed
Incorporated Document 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.
The validity of the shares of Common Stock to be offered hereunder has been
passed upon for the Company by Wise & Shepard LLP. As of March 12, 1997, David
W. Herbst, a partner of Wise & Shepard LLP, beneficially owned 11,942 shares of
the Common Stock of the Company. These shares of Common Stock were acquired in
two unrelated transactions in 1991.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 145 of the Delaware General Corporation Law, the
Company's Certificate of Incorporation includes a provision that eliminates the
personal liability of its directors to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of the Delaware General Corporation Law or (iv) for any transaction
from which the director derived an improper personal benefit. In addition, as
permitted by Section 145 of the Delaware General Corporation Law, the Bylaws of
the Company provide that: (i) the Company is required to indemnify its directors
and officers to the fullest extent permitted by the Delaware General Corporation
Law; (ii) the Company may, in its discretion, indemnify other officers,
employees and agents as set forth in the Delaware General Corporation Law; (iii)
upon receipt of an undertaking to repay such advances if indemnification is
determined to be unavailable, the Company is required to advance expenses, as
incurred, to its directors and executive officers in connection with a
proceeding; (iv) the rights conferred in the Bylaws are not exclusive and the
Company is authorized to enter into indemnification agreements with its
directors, officers, employees and agents; (v) the Company may not retroactively
apply any amendment of the Bylaw provisions relating to indemnity; and (vi) to
the fullest extent permitted by the Delaware General Corporation Law, a director
or executive officer will be deemed to have acted in good faith if his or her
action is based on the records or books of account of the Company or on
information supplied to him or her by officers of the Company in the course of
their duties or on the advice of legal counsel for the Company or on information
or records given or reports made to the Company by independent certified public
accountants or appraisers or other experts.
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The Company intends to enter into indemnification agreements with each of
its directors and executive officers. The indemnification agreements provide
that directors and executive officers will be indemnified and held harmless to
the fullest possible extent permitted by law including against all expenses
(including attorneys' fees), judgments, fines and settlement amounts actually
and reasonably incurred by them in any action, suit or proceeding, including any
derivative action by or in the right of the Company, on account of their
services as directors, officers, employees or agents of the Company or as
directors, officers, employees or agents of any other company or enterprise when
they are serving in such capacities at the request of the Company.
The indemnification agreement requires a director or executive officer to
reimburse the Company for expenses advanced only to the extent that it is
ultimately determined that the director or executive officer is not entitled,
under Delaware law, the Bylaws, his or her indemnification agreement or
otherwise to be indemnified for such expenses. The indemnification agreement
provides that it is not exclusive of any rights a director or executive officer
may have under the Certificate of Incorporation, Bylaws, other agreements, any
vote of the stockholders or vote of directors or otherwise.
The indemnification provision in the Bylaws, and the indemnification
agreements entered into between the Company and its directors and executive
officers, may be sufficiently broad to permit indemnification of the Company's
directors and executive officers for liabilities arising under the Securities
Act.
As authorized by the Company's Bylaws, the Company, with approval by the
Company's Board of Directors, has applied for, and expects to obtain, directors
and officers liability insurance with a per claim and annual aggregate coverage
limit of up to $5,000,000.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index on page 10 hereof.
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 this 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 this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume
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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 and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do 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 this 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; and
(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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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 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 Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Sunnyvale, State of California, on this 12th day of
March, 1997.
MACROVISION CORPORATION
By:
/s/ John O. Ryan
------------------
John O. Ryan
CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints John O. Ryan, William A. Krepick, Richard
S. Matuszak and Victor A. Viegas, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution, 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, and each of them, 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 any of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act, this Registration
Statement was signed by the following persons in the capacities and on the dates
stated.
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NAME TITLE DATE
------------- ------------- -------------
PRINCIPAL EXECUTIVE OFFICER:
Chairman of the Board of
Directors, Chief
/s/ John O. Ryan Executive Officer and a March 12, 1997
------------------------- Director
John O. Ryan
PRINCIPAL FINANCIAL OFFICER
AND PRINCIPAL ACCOUNTING
OFFICER:
Vice President, Finance
/s/ Victor A. Viegas and Administration and March 12,1997
------------------------- Chief Financial Officer
Victor A. Viegas
ADDITIONAL DIRECTORS:
/s/ William A. Krepick President, Chief Operating March 12, 1997
------------------------- Officer and Director
William A. Krepick
/s/ Richard S. Matuszak Director March 12, 1997
-------------------------
Richard S. Matuszak
8
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
EXHIBITS
filed with
Registration Statement
On
Form S-8
Under
The Securities Act of 1933
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Macrovision Corporation
(Exact name of issuer as specified in its charter)
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EXHIBIT INDEX
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SEQUENTIAL
EXHIBIT NUMBER DESCRIPTION PAGE NUMBER
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4.1 The Amended and Restated Certificate of
Incorporation of the Company is incorporated by
reference to Exhibit 3.02 to the Company's
Registration Statement on Form SB-2 (File No.
333-19373), as amended by Amendment No. 1 filed
with the Commission on January 8, 1997,
Amendment No. 2 filed with the Commission on
January 22, 1997, Amendment No. 3 filed with the
Commission on February 11, 1997, and Amendment
No. 4 filed with the Commission on February 28,
1997 ( the "Registration Statement on Form
SB-2"). ------
4.2 The Amended and Restated Bylaws of the Company
is incorporated by reference to Exhibit 3.04 to
the Company's Registration Statement on Form
SB-2. ------
4.3 The Macrovision Corporation Stock Option Plan
and related documents are incorporated by
reference to Exhibit 10.01 to the Company's
Registration Statement on Form SB-2 ------
4.4 The Macrovision Corporation 1996 Equity
Incentive Plan and related documents are
incorporated by reference to Exhibit 10.02 to
the Company's Registration Statement on Form
SB-2 ------
4.5 The Macrovision Corporation 1996 Directors Stock
Option Plan and related documents are
incorporated by reference to Exhibit 10.03 to
the Company's Registration Statement on Form
SB-2 ------
4.6 The Macrovision Corporation 1996 Employee Stock
Purchase Plan and related documents are
incorporated by reference to Exhibit 10.04 to
the Company's Registration Statement on Form
SB-2 ------
5.1 Opinion of Wise & Shepard LLP 13
23.1 Consent of Wise & Shepard LLP ( included in
Exhibit 5.1) ------
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23.2 Consent of KPMG Peat Marwick LLP 16
23.3 Consent of Ernst & Young LLP 18
24 Power of Attorney (included on signature page
hereto) ------
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Exhibit 5.1
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March 12, 1997
Macrovision Corporation
1341 Orleans Drive
Sunnyvale, CA 94089
Re: Form S-8 Registration Statement;
1,280,390 Shares of Common Stock
Ladies and Gentlemen:
In connection with the registration by Macrovision Corporation, a Delaware
corporation (the "Company"), of 1,280,390 shares of common stock, par value
$.001 per share (the "Shares"), of the Company to be issued pursuant to (i) the
Macrovision Corporation Stock Option Plan, (ii) The Macrovision Corporation 1996
Equity Incentive Plan, (iii) the Macrovision Corporation 1996 Employee Stock
Purchase Plan, and (iv) the Macrovision Corporation 1996 Directors Stock Option
Plan, under the Securities Act of 1933, as amended (the "Act"), on a
Registration Statement on Form S-8 to be filed with the Securities and Exchange
Commission on or about March 13, 1997 (as amended from time to time, the
"Registration Statement"), you have requested our opinion with respect to the
matters set forth below.
In our capacity as your counsel in connection with such registration, we
are familiar with the proceedings taken and proposed to be taken by the Company
in connection with the authorization, issuance and sale of the Shares, and for
the purposes of this opinion, have assumed such proceedings will be timely
completed in the manner presently proposed. In addition, we have made such legal
and factual examinations and inquiries, including an examination of originals or
copies certified or otherwise identified to our satisfaction of such documents,
corporate records and instruments, as we have deemed necessary or appropriate
for purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to authentic original documents of all documents submitted to us as copies.
We are opining herein as to the effect on the subject transaction only of
the General Corporation Law of the State of Delaware and the federal law of the
United States, and we express no opinion with respect to the applicability
thereto, or the effect thereon, of the laws of any other jurisdiction or any
other laws, or as to any matters of municipal law or the laws of any other local
agencies within the state.
Subject to the foregoing, it is our opinion that, as of the date hereof,
the Shares have been duly authorized, and, upon the issuance of and payment for
the Shares in accordance with the
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terms set forth in the respective stock option plans under which such Shares
will be issued and sold, the Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement and the use of our name wherever it appears in the
Registration Statement.
Very truly yours,
/s/ Wise & Shepard LLP
----------------------
WISE & SHEPARD LLP
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Exhibit 23.2
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CONSENT OF KPMG PEAT MARWICK LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration
statement on Form S-8 of Macrovision Corporation of our report dated February
7, 1997, except as to the Reincorporation paragraph of Note 1, which is as of
February 26, 1997, relating to the consolidated balance sheets of Macrovision
Corporation and subsidiaries as of December 31, 1996 and 1995, and the
related consolidated statements of income, stockholders' equity, and cash
flows for the years then ended, which report appears in the registration
statement (No. 333-19373) on Form SB-2 of Macrovision Corporation.
/s/ KPMG Peat Marwick LLP
--------------------------
KPMG Peat Marwick LLP
San Jose, California
March 12, 1997
16
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Exhibit 23.3
17
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CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Macrovision Corporation Stock Option Plan, the
Macrovision Corporation 1996 Equity Incentive Plan, the Macrovision Corporation
1996 Employee Stock Purchase Plan, and the Macrovision Corporation 1996
Directors Stock Option Plan of Macrovision Corporation of our report dated March
7, 1995, with respect to the consolidated statements of operations,
stockholders' equity, and cash flows of Macrovision Corporation for the year
ended December 31, 1994 included in its Registration Statement (Form SB-2, No.
333-19373) filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
-----------------------
Ernst & Young LLP
Palo Alto, California
March 12, 1997
18
