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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 14, 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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LIBERTY DIGITAL, INC.
(Exact name of registrant as specified in charter)
DELAWARE 84-1380293
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
67 IRVING PLACE NORTH, 4TH FLOOR
NEW YORK, NY 10003
(212) 387-7700
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
DEFERRED COMPENSATION AND STOCK APPRECIATION RIGHTS AGREEMENT WITH
BRUCE W. RAVENEL
(Full Title of Plan Rights Plan)
LEE MASTERS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
12312 OLYMPIC BOULEVARD
LOS ANGELES, CALIFORNIA 90064
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Leslie A. Nichols, Esq.
Sherman & Howard L.L.C.
633 Seventeenth Street, Suite 3000
Denver, CO 80202
(303) 297-2900
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED OFFERING PRICE PER UNIT AGGREGATE OFFERING PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Series A Common Stock, 566,159 $29,935,657.125 $7,903.02(2)
$0.01 par value
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</TABLE>
(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 purposes of calculating the registration fee pursuant
to Rule 457(h) based upon the average of the high and low prices of the
Registrant's Series A Common Stock, as reported on the Nasdaq National Market on
February 10, 2000.
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Exhibit Index can be found on page II-ix.
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INFORMATION REQUIRED IN 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 Liberty Digital, Inc.
(formerly known as 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 year ended
December 31, 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since December 31, 1998.
(c) The description of the Company's Series A Common Stock
contained in the Registration Statement on Form 8-B filed by Liberty
Digital 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
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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 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 shareholders 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 shareholders,
(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
shareholders 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
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undertaking by the director 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 shareholders 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 II-ix.
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ITEM 9. UNDERTAKINGS.
(a) The Company 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 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.
(2) 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.
(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 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.
(c) 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
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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 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 February 11, 2000.
LIBERTY DIGITAL, INC.
(Registrant)
By: /s/ DAVID B. KOFF
-----------------------------
David B. Koff
Vice President
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 David B. Koff 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> <C> <C>
/s/ LEE MASTERS President and Chief Executive February 11, 2000
- --------------------------- Officer
Lee Masters (Principal Executive Officer)
/s/ ROBERT R. BENNETT Chairman of the Board February 11, 2000
- ---------------------------
Robert R. Bennett
/s/ GARY S. HOWARD Director February 11, 2000
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Gary S. Howard
/s/ DAVID B. KOFF Director February 11, 2000
- ---------------------------
David B. Koff
/s/ PETER M. KERN Director February 11, 2000
- ---------------------------
Peter M. Kern
/s/ J. DAVID WARGO Director February 11, 2000
- ---------------------------
J. David Wargo
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<TABLE>
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Signatures Title Date
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<S> <C> <C>
/s/ RALPH J. SORRENTINO Executive Vice President and February 11, 2000
- --------------------------- Chief Financial Officer
Ralph J. Sorrentino (Principal Accounting Officer,
Principal Financial Officer)
</TABLE>
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION
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5 Opinion of Sherman & Howard L.L.C. as to the legality
of the securities being registered.
23.1 Consent of KPMG 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.
</TABLE>
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EXHIBIT 5
February 14, 2000
Liberty Digital, Inc.
Board of Directors
67 Irving Place North, 4th Floor
New York, New York 10003
Gentlemen:
We have acted as special counsel for Liberty Digital, Inc. (the
"Company") in connection with the preparation, execution and filing of a
Registration Statement under the Securities Act of 1933 on Form S-8 relating to
the registration of 566,159 shares of Liberty Digital, Inc. Series A Common
Stock, $.01 par value ("Common Stock"), which may be issued pursuant to the
Liberty Digital, Inc. Deferred Compensation and Stock Appreciation Rights Plan
(the "Plan").
In connection with the opinion expressed below, we have made such
factual inquiries and have examined or caused to be examined such questions of
law as we have considered necessary or appropriate for the purpose of such
opinion. On the basis of such inquiries or examinations, it is our opinion that
any newly issued shares of Common Stock issued the Company pursuant to the Plan,
will be duly authorized, validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above.
Very truly yours,
/s/ Sherman & Howard L.L.C.
Sherman & Howard L.L.C.
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EXHIBIT 23.1
The Board of Directors
Liberty Digital, Inc.:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Liberty Digital, Inc. and subsidiaries (formerly TCI Music, Inc.) of
our report dated February 12, 1999, with respect to the consolidated balance
sheets of TCI Music, Inc. as of December 31, 1998 and 1997, and the related
statements of operations and comprehensive earnings, stockholders' equity and
cash flows for the year ended December 31, 1998 and the six months ended
December 31, 1997, and the related statements of operations and comprehensive
earnings, stockholders' equity and cash flows of DMX, Inc. and subsidiaries
(Predecessor) for the nine months ended June 30, 1997 and the year ended
September 30, 1996, which report appears in the Annual Report (Form 10-K) of TCI
Music, Inc. for the year ended December 31, 1998.
KPMG LLP
Los Angeles, California
February 11, 2000
