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Registration No. 333-
As filed with the Securities and Exchange Commission on January 14, 1998
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UNITED STATES
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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TCI MUSIC, INC.
(Exact name of issuer as specified in its charter)
Delaware 84-1380293
(State of Incorporation) (I.R.S. Employer Identification No.)
8101 East Prentice Avenue, Suite 500
Englewood, Colorado 80111
(Address of principal executive offices)
TCI MUSIC, INC. 1997 STOCK INCENTIVE PLAN
(Full Title of the Plan)
Stephen M. Brett, Esq.
c/o Tele-Communications, Inc.
Terrace Tower II
5619 DTC Parkway
Englewood, Colorado 80111
(303) 267-5500
(Name, address and telephone number of agent for service)
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Copy to:
Charles Y. Tanabe, Esq.
Sherman & Howard L.L.C.
3000 First Interstate Tower North
633 Seventeenth Street
Denver, Colorado 80202
(303) 297-2900
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share(2) Offering Price(2) Fee
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Series A Common Stock, par 4,000,000(1) $1.16 $4,640,000 $1,368.80
value $.01 per share . . . .
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(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the
"Act"), this registration statement shall be deemed to cover additional
securities that may be offered or issued to prevent dilution resulting from
stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) of the Act based on the book value of a share of
Series A Common Stock as of September 30, 1997.
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Exhibit Index can be found on page 10.
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INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the employee benefit plan information
required by Item 1 of Part I of this Form and the statement of availability of
registrant information and other information required by Item 2 of Part I of
this Form will be sent or given to participants as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the "Securities Act"). In
accordance with Rule 428(a) under the Securities Act and the requirements of
Part I of Form S-8, such documents are not being filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. The Registrant shall maintain a file of such
documents in accordance with the provisions of Rule 428(a)(2) under the
Securities Act. Upon request, the Registrant shall furnish to the Commission
or its staff a copy or copies of all the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by TCI Music, Inc. (the
"Company") with the Commission pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (File No. 000-22815), are incorporated by
reference herein and shall be deemed to be a part hereof.
(a) The Company's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act on Form 10-K for the
transition period from October 1, 1996 to June 30, 1997.
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since June 30, 1997.
(c) The description of the Company's Series A Common
Stock contained in the Registration Statement on Form 8-B filed by TCI
Music on July 9, 1997 with the Commission under the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
All documents, filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents");
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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 Company's Annual
Report on Form 10-K 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Generally, Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Corporation Law") permits a corporation to indemnify
certain persons made a party or threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was a director or officer of the corporation or is or was serving
at the request of the corporation as a director or officer of another
corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with any such action, suit or proceeding if he
acted in good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, if he had no reasonable cause to believe that
his conduct was unlawful. A corporation may similarly indemnify such person
for expenses actually and reasonably incurred by such person in connection with
the defense or settlement of any action or suit by or in the right of the
corporation, provided such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, in the case of claims, issues and matters as to which such
person shall have been adjudged liable to the corporation, provided that a
court shall have determined, upon application, that, despite the adjudication
of liability but in view of all of the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which such
court shall deem proper.
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Section 102(b)(7) of the Delaware Corporation Law enables a Delaware
corporation to include a provision in its certificate of incorporation limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breaches of fiduciary duty as a director, except that such
provision may not eliminate or limit the liability of a director for (1) any
breach of the director's duty of loyalty to the corporation or its
stockholders, (2) for acts or omissions that are not in good faith or which
involve intentional misconduct or a knowing violation of the law, (3) under
Section 174 of the Delaware Corporation Law or (4) for any transaction from
which the director derived an improper personal benefit. No such provision may
eliminate or limit the liability of a director for any act or omission
occurring prior to the date when such provision became effective.
Article V, Section E of the Company's Certificate of Incorporation
provides as follows:
1. Limitation on Liability.
To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
the Corporation shall not be liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a director.
Any repeal or modification of this paragraph 1 shall be prospective only and
shall not adversely affect any limitation, right or protection of a director of
the Corporation existing at the time of such repeal or modification.
2. Indemnification.
(a) Right to Indemnification. The Corporation
shall indemnify and hold harmless, to the fullest extent permitted by
applicable law as it presently exists or may hereafter be amended, any person
who was or is made or is threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding") by reason of the fact that he, or a person for
whom he is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses (including attorneys' fees) reasonably incurred by such
person. Such right of indemnification shall inure whether or not the claim
asserted is based on matters which antedate the adoption of this Section E.
The Corporation shall be required to indemnify or make advances to a person in
connection with a proceeding (or part thereof) initiated by such person only if
the proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
(b) Prepayment of Expenses. The Corporation
shall pay the expenses (including attorneys' fees) incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the director
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or officer to repay all amounts advanced if it should be ultimately determined
that the director or officer is not entitled to be indemnified under this
paragraph or otherwise.
(c) Claims. If a claim for indemnification or
payment of expenses under this paragraph is not paid in full within 60 days
after a written claim therefor has been received by the Corporation, the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
(d) Non-Exclusivity of Rights. The rights
conferred on any person by this paragraph shall not be exclusive of any other
rights which such person may or hereafter acquire under any statute, provision
of this Certificate, the Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
(e) Other Indemnification. The Corporation's
obligation, if any, to indemnify any person who was or is serving at its
request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust, enterprise or nonprofit
entity.
3. Amendment or Repeal.
Any repeal or modification of the foregoing provisions of this
Section E shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
Article II, Section 2.9 of the Company's Bylaws also contains an
indemnity provision, requiring the Company to indemnify members of the Board of
Directors and officers of the Company and their respective heirs, personal
representatives and successors in interest for or on account of any action
performed on behalf of the Company, to the fullest extent provided by the laws
of the State of Delaware and the Company's Certificate of Incorporation, as
then or thereafter in effect.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index on page 10.
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ITEM 9. UNDERTAKINGS.
(1) The Company hereby undertakes:
(a) 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 of 1933;
(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;
(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 (1)(a)(i) and (1)(a)(ii) 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 Company
pursuant to Section 13(a) or Section 15(d) of the 1934 Act that are
incorporated by reference in the registration statement.
(b) That, for the purpose 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.
(c) 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.
(2) The Company hereby undertakes that, for the purpose of
determining any liability under the Securities Act, each filing of the issuer's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act of (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 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 the time shall be deemed to be the initial bona
fide offering hereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such
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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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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, 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 Englewood, State of Colorado, on January 13, 1998.
TCI MUSIC, INC.
(Registrant)
By: /s/ STEPHEN M. BRETT
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Stephen M. Brett
Vice President and Secretary
In accordance with the requirements of the Securities Act of 1933,
this Form S-8 registration statement was signed by the following persons in the
capacities and on the dates stated. Each of the following persons hereby
appoints Stephen M. Brett and Robert R. Bennett, with full power of
substitution, as his true and lawful attorney-in- fact to sign in his name and
on his behalf all amendments to this registration statement (including
post-effective amendments) and ratifies and confirms all that said
attorney-in-fact may do pursuant to this Power of Attorney.
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Signatures Title Date
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/s/ ROBERT R. BENNETT Chairman of the Board January 13, 1998
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Robert R. Bennett
/s/LEO J. HINDERY, JR. Director January 13, 1998
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Leo J. Hindery, Jr.
/s/THOMAS MCPARTLAND Director, President, January 13, 1998
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Thomas McPartland (Principal Executive Officer)
/s/ DAVID B. KOFF Director January 13, 1998
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David B. Koff
Director January __, 1998
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Donne F. Fisher
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/s/ PETER M. KERN Director January 13, 1998
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Peter M. Kern
Director January __, 1998
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J.C. Sparkman
/s/ LON A. TROXEL Director January 13, 1998
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Lon A. Troxel
/s/ JOANNE WENDY KIM Vice President-Finance January 13, 1998
- ------------------------ (Principal Accounting Officer,
Joanne Wendy Kim Principal Financial Officer)
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION
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4.1 Form of Stock Certificate for Series A Common Stock, par value $.01 per share, of TCI Music
(without rights issued by Tele-Communications, Inc.) (Incorporated by reference to Exhibit 4.1
to the Registration Statement on Form S-4 of TCI Music, Inc. (No. 333-39943), filed with the
Commission on November 12, 1997.)
5 Opinion of Sherman & Howard L.L.C. as to the legality of the securities being registered.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Sherman & Howard L.L.C. (See Exhibit 5)
24 Power of Attorney is included on the signature pages of the registration statement.
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Exhibit 5
January 13, 1998
TCI Music, Inc.
8101 East Prentice Avenue, Suite 500
Englewood, Colorado 80111
Re: Validity of Common Stock
Ladies and Gentlemen:
We have acted as counsel to TCI Music, Inc., a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 relating to 4,000,000 shares of the Company's Series A Common Stock,
par value $.01 per share (the "Shares") pursuant to the TCI Music, Inc. 1997
Stock Incentive Plan (the "Plan").
We have examined the Company's certificate of incorporation,
bylaws, and resolutions of the Company's board of directors authorizing the
Shares for reservation and issuance.
Based on the foregoing examination, we advise you that in our
opinion the Shares of common stock being offered pursuant to the Registration
Statement on Form S-8 have been duly authorized and when issued and sold
pursuant to the terms of the Plan, will be legally issued, fully paid and
nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 referred to above. In giving this consent,
we do not thereby admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933 or the rules
and regulations of the Securities and Exchange Commission thereunder.
Yours truly,
/s/ SHERMAN & HOWARD L.L.C.
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Exhibit 23.1
The Board of Directors
TCI Music, Inc.
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
Los Angeles, California
January 13, 1998
