<PAGE>
As filed with the Securities and Exchange Commission on April 28, 1998
Registration No.333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
under
The Securities Act of 1933
CDnow, Inc.
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(Exact name of registrant as specified in its charter)
Pennsylvania 232813867
- ---------------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Jenkins Court, Suite 300, 610 Old York Road, Jenkintown, PA 19046
- ----------------------------------------------------------- ---------------
(Address of Principal Executive Offices) (Zip Code)
CDnow, Inc. 1996 Equity Compensation Plan
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(Full title of the plan)
Joel Sussman
Vice President and Chief Financial Officer
CDnow, Inc.
Jenkins Court, Suite 300
610 Old York Road
Jenkintown, PA 19046
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(Name and address of agent for service)
(215) 517-7325
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(Telephone number, including area code, of agent for service)
Copies to:
Alan Singer, Esquire
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, Pennsylvania 19103-6993
(215) 963-5000
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered (2) offering price aggregate registration
per share offering price fee (3)
<S> <C> <C> <C> <C>
Common Stock, no par 1,600,000 shares $(1) $25,863,709 $7,629.79
value
============================================================================================
</TABLE>
================================================================================
<PAGE>
(1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, based
upon the price at which options may be exercised (375,966 shares at $1.33
per share, 207,627 shares at $3.00 per share, 93,549 shares at $10.00 per
share, 7,750 shares at $14.00 per share and 52,332 shares at $35.50 per
share) or, where such price is not known and with respect to other types of
issuances that may be made under the plan, the average of the high and low
prices of the Company's Common Stock, as reported on the Nasdaq National
Market, of $25.3125 per share on April 27, 1998.
(2) Pursuant to Rule 416 under the Securities Act of 1933, this Registration
Statement also covers such additional shares as may hereinafter be offered
or issued to prevent dilution resulting from stock splits, stock dividends,
recapitalizations or certain other capital adjustments.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933 as
follows: proposed maximum aggregate offering price multiplied by .000295.
II-2
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PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference.
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The following documents filed by CDnow, Inc. (the "Registrant") with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Act of 1933 or the Securities Exchange Act of 1934 are incorporated by reference
in this Registration Statement:
(1) The Registrant's prospectus dated February 9, 1998 pursuant to
Rule 424 (b) of the Securities Act of 1933; and
(2) The description of the Registrant's Common Stock, no par value
(the "Common Stock"), set forth in the Registrant's Registration
Statement on Form 8-A, filed with the Commission on February 9, 1998, to
register such securities under the Securities Exchange Act of 1934.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 after the date of this Registration Statement, and prior to the filing
of a post-effective amendment to this Registration Statement which indicates
that all securities offered by this Registration Statement have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be part of
this Registration Statement from the date of filing of such documents. Any
statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed document which
also is incorporated by reference herein) modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
Experts. The financial statements incorporated by reference in this
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registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports. To the extent that Arthur Andersen LLP audits and reports on
financial statements of the Registrant issued at future dates, and consents to
the use of their report therein, such financial statements also will be
incorporated by reference in this Registration Statement in reliance upon their
report and said authority.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Chapter 17, Subchapter D of the Pennsylvania Business Corporation Law of
1988, as amended (the "PBCL") contains provisions permitting indemnification of
officers and directors of a business corporation incorporated in Pennsylvania.
Sections 1741 and 1742 of the PBCL provide that a business corporation may
indemnify directors and officers against liabilities and expenses they may incur
as such in connection with threatened, pending or completed civil,
administrative or investigative proceeding, provided that the particular 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, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. In general, the power to indemnify under these sections does not exist
in the case of actions against a director or officer by or in the right of the
corporation if the person otherwise entitled to indemnification shall have been
adjudged to be liable to the corporation unless it is judicially determined
that, despite the adjudication of liability but in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnification for
specified expenses. Section 1743 of the PBCL provides that the corporation is
required to indemnify directors and officers against expenses they may incur in
defending actions against them in such capacities if they are successful on the
merits or otherwise in the defense of such actions.
II-3
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Section 1746 of the PBCL grants a corporation broad authority to
indemnify its directors and officers for liabilities and expenses incurred in
such capacity, except in circumstances where the act or failure to act giving
rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
Section 1747 of the PBCL permits a corporation to purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
representative of another corporation or other enterprise, against any liability
asserted against such person and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify the person against such liability under Chapter 17,
Subchapter D of the PBCL.
Section 8.01 of the Bylaws provides that the Registrant will indemnify
any director or officer of the Registrant or any other person designated by the
Board of Directors of the Registrant (which may, but need not, include any
person serving at the request of the Registrant as a director or officer,
employee, agent, fiduciary or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or other entity or enterprise) against any
damage, judgment, amount paid in settlement, fine, penalty, punitive damages,
excise tax assessed with respect to an employee benefit plan, or cost or expense
of any nature (including, without limitation, attorneys' fees and disbursements)
incurred in connection with any proceeding in which such person may be involved
as a party or otherwise by reason of the fact that such person is or was serving
in such capacity, including, without limitation, liabilities resulting from any
actual or alleged breach of duty, error, misstatement or misleading statement,
negligent, gross negligence or act giving rise to strict or products liability.
Notwithstanding the foregoing, the Registrant shall not indemnify any person for
any act or failure to act which is (i) prohibited by applicable law or (ii)
finally determined to have constituted willful misconduct or recklessness or to
be based upon or attributable to the receipt by such person of a personal
benefit to which such person is not legally entitled. Section 8.03 of the
Bylaws provides for the advancement of expenses to an indemnified party upon
receipt of an undertaking by the party to repay those amounts if it is
ultimately determined that the indemnified party is not entitled to
indemnification.
Section 8.04 of the Bylaws authorizes the Registrant to use any mechanism
or arrangement, as determined by the Board of Directors, to further effect,
satisfy or secure its indemnification obligations, including purchasing and
maintaining insurance, obtaining a letter of credit, creating a reserve, trust,
escrow or other fund or account, entering into indemnification agreements or
granting security interests.
Section 8.08 of the Bylaws mandates indemnification against expenses
(including attorney's fees and disbursements) actually and reasonably incurred
by any authorized representative of the Registrant who has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Sections 1741 or 1742 of the PBCL.
Section 8.09 of the Bylaws provides that the rights of indemnification
under the Bylaws will be deemed a contract between the Registrant and each
person entitled to indemnification.
Section 8.10 of the Bylaws states that the indemnification authorized by
the Bylaws will not be exclusive of any other rights to which persons seeking
indemnification or advancement of expenses may be entitled.
The Registrant maintains, on behalf of its directors and officers,
insurance protection against certain liabilities arising out of the discharge of
their duties.
Item 7. Exemption from Registration Claimed.
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Not applicable.
II-4
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Item 8. Exhibits.
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The following Exhibits are filed as part of this Registration Statement:
4 CDnow, Inc. 1996 Equity Compensation Plan - incorporated by
reference to Exhibit 10.4 to the Registrant's Registration
Statement on Form S-1 filed with the Securities and Exchange
Commission on November 26, 1997.
5 Opinion of Morgan, Lewis & Bockius LLP
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (contained in Exhibit 5)
25 Power of Attorney (contained on signature page of this
Registration Statement)
Item 9. Undertakings.
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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 of 1933;
(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;
(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 paragraphs (a)(l)(i) and (a)(1)(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 Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this 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.
The undesigned 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 15(d) of the Securities
Exchange Act of 1934 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.
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 Commission such
indemnification is against public policy as expressed in the 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-5
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SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Jenkintown, State of Pennsylvania on this 28th
day of April, 1998.
CDnow, Inc.
By: /s/ Jason Olim
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Jason Olim,
President, Chief Executive Officer and
Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Joel Sussman his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent 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 attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Capacity Date
- ------------------ ---------------------------------- --------------
<S> <C> <C>
/s/ Jason Olim President, Chief Executive April 28, 1998
- ------------------ Officer and Chairman of the Board
Jason Olim (principal executive officer)
/s/ Joel Sussman Vice President and Chief Financial April 28, 1998
- ------------------ Officer (principal financial and
Joel Sussman accounting officer)
* Director April 28, 1998
- ------------------
Matthew Olim
* Director April 28, 1998
- ------------------
Alan Meltzer
* Director April 28, 1998
- ------------------
Patrick Kerins
* Director April 28, 1998
- ------------------
John Regan
</TABLE>
II-6
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CDNOW, INC.
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
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Exhibit No.
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4 CDnow, Inc. 1996 Equity Compensation Plan - incorporated by
reference to Exhibit 10.4 to the Registrant's Registration
Statement on Form S-1 filed with the Securities and Exchange
Commission on November 26, 1997.
5 Opinion of Morgan, Lewis & Bockius LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (contained in Exhibit 5)
25 Power of Attorney (contained on signature page of this
Registration Statement)
<PAGE>
EXHIBIT 5
April 28, 1998
CDnow, Inc.
Jenkins Court, Suite 300
610 Old York Road
Jenkintown, PA 19046
Re: CDnow, Inc.
Registration Statement on Form S-8 Relating to the
CDnow, Inc. 1996 Equity Compensation Plan
-----------------------------------------
Ladies and Gentlemen:
We have acted as counsel to CDnow, Inc., a Pennsylvania corporation (the
"Company"), in connection with the preparation of a registration statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
relating to 1,600,000 shares of the Company's common stock, no par value per
share (the "Common Stock"), issuable under the CDnow, Inc. 1996 Equity
Compensation Plan (the "Plan"). We have examined such certificates, records,
statutes and other documents as we have deemed relevant in rendering this
opinion. As to matters of fact, we have relied on representations of officers
of the Company. In our examination, we have assumed the genuineness of
documents submitted to us as originals and the conformity with the original of
all documents submitted to us as copies thereof.
Based on the foregoing, we are of the opinion that, when issued by the Company
in accordance with the terms and conditions of the Plan, the Common Stock
issuable under the Plan will be validly issued, fully paid and nonassessable.
The opinion set forth above is limited to the laws of the Commonwealth of
Pennsylvania.
We hereby consent to the use of this opinion as Exhibit 5 to the Registration
Statement. In giving such opinion, we do not thereby admit that we are acting
within the category of persons whose consent is required under Section 7 of the
Act or the rules or regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 14, 1998
included in CDnow, Inc.'s previously filed Form S-1 registration statement (File
No. 333-41241) dated February 10, 1998 for the year ended December 31, 1997 and
to all references to our Firm included in this registration statement.
Arthur Andersen LLP
Philadelphia, Pa.,
April 23, 1998
