<PAGE> 1
As filed with the Securities and Exchange Commission on January 8, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BROADCAST.COM INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 75-2600532
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2914 TAYLOR STREET
DALLAS, TEXAS 75226
(Address of Principal Executive Offices, including Zip Code)
BROADCAST.COM INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
1998 STOCK OPTION PLAN
1996 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(AMENDED AND RESTATED AS OF JUNE 1, 1997, AS AMENDED)
1996 STOCK OPTION PLAN
(AMENDED AND RESTATED AS OF FEBRUARY 1, 1997)
(Full Titles of the Plans)
TODD R. WAGNER
CHIEF EXECUTIVE OFFICER
BROADCAST.COM INC.
2914 TAYLOR STREET
DALLAS, TEXAS 75226
(Name and Address of Agent For Service)
(214) 748-6660
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
SEAN P. GRIFFITHS, ESQ.
GIBSON, DUNN & CRUTCHER LLP
200 PARK AVENUE
NEW YORK, NEW YORK 10166-0193
(212) 351-4000
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<TABLE>
<CAPTION>
=============================================================================================================================
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) PRICE (1) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
common stock, par value $.01
per share ("Common Stock") 2,779,850 N/A $ 96,460,795 $ 26,816.10
(2)......................
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock (3).......... 1,132,727 N/A $ 5,301,162 $ 1,473.72
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock (4) 150,000 N/A $ 8,865,000 $ 2,464.47
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock (5).......... 250,000 N/A $ 16,202,500 $ 4,504.30
- -----------------------------------------------------------------------------------------------------------------------------
Total........ 4,312,577 N/A $126,829,457 $35,258.59
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) These shares are offered under the Company's 1998 Stock Option Plan.
Pursuant to Rule 457(h)(1), the filing fee for the 2,599,785 shares
subject to options that have been granted is calculated based upon the
weighted average of the various strike prices of such shares, which is
$31.83. Pursuant to Rule 457(h)(1), the filing fee for the
180,065 shares subject to options that have not yet been granted is
calculated based upon the average of the high and low selling prices per
share of the Common Stock on December 31, 1998, as reported on the Nasdaq
National Market, which was $76.25 per share.
(3) These shares are offered under the Company's 1996 Stock Option Plan.
Pursuant to Rule 457(h)(1), the filing fee for the 1,132,727 shares
subject to options that have been granted is calculated based upon the
weighted average of the various strike prices of such shares, which is
$4.68.
(4) These shares are offered under the Company's 1996 Non-Employee Directors
Stock Option Plan. Pursuant to Rule 457(h)(1), the filing fee for the
39,900 shares subject to options that have been granted is
calculated based upon the weighted average of the various strike prices of
such shares, which is $11.77. Pursuant to Rule 457(h)(1), the filing
fee for the 110,100 shares subject to options that have not yet been
granted is calculated based upon the average of the high and low selling
prices per share of the Common Stock on December 31, 1998, as reported on
the Nasdaq National Market, which was $76.25 per share.
(5) These shares are offered under the Company's 1998 Employee Purchase Plan.
The aggregate offering price was estimated using a per share price of
$64.81, or 85% of $76.25, which price per share is the estimated
basis at which the shares will be issued pursuant to such plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities Act") and
the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Company heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated in
this Registration Statement by reference:
(1) The Company's Prospectus, dated July 16, 1998, filed pursuant to Rule
424(b)(4) under the Securities Act;
(2) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended June 30, 1998 and September 30, 1998;
(3) The Company's Current Reports on Form 8-K filed on November 20, 1998
and December 15, 1998; and
(4) The description of the Common Stock contained in the Company's
Registration Statement on Form S-1 (File No. 333-52877) and
incorporated by reference in the Company's Registration Statement on
Form 8-A (File No. 000-24591).
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereunder have been sold or which deregisters all such shares then remaining
unsold shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such reports or
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein 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 document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any 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.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock offered hereby will be passed upon for
the Company by Gibson, Dunn & Crutcher LLP, New York, New York. Sean P.
Griffiths, a partner of Gibson, Dunn & Crutcher LLP, currently owns 20,220
shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 (a) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent 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 enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she 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 action or
proceeding, had no cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of DGCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsection (a) and (b) or in the defense of any
claim, issue or matter therein, such officer or director shall be indemnified
against expenses actually and reasonably incurred by him or her in connection
therewith; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation may purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
such officer or director 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 him or her against such liabilities under Section
145.
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As permitted by Section 102(b)(7) of the DGCL, the Company's Restated
Certificate of Incorporation, as amended, provides that a director shall not be
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director. However, such provision does not eliminate or
limit the liability of a director for acts or omissions not in good faith or for
breaching his or her duty of loyalty, engaging in intentional misconduct or
knowingly violating a law, paying a dividend or approving a stock repurchase
which was illegal, or obtaining an improper personal benefit. A provision of
this type has no effect on the availability of equitable remedies, such as
injunction or rescission, for breach of fiduciary duty.
The Company's Bylaws require the Company to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Company) by
reason of the fact that he is or was a director, officer or employee of the
Company, or that being such a director, officer or employee he is or was serving
at the request of the Company as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
In addition, the Company's Bylaws require the Company to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the Company, or that being such a
director, officer or employee he is or was serving at the request of the Company
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his duty to the Company
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
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Any indemnification (unless ordered by a court) made by the Company may
be only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct as set forth
above. Such determination must be made (i) by the Board by a majority vote of a
quorum consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable,
a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion, or (iii) by the stockholders.
To the extent that a director, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of any covered
action, suit or proceeding, or in defense of any covered claim, issue or matter
therein, he will be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding may be paid by the Company in advance of the
final disposition of such action, suit or proceeding as authorized by the Board
in the specific case upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the Company as authorized in
the Bylaws. Such expenses incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the Board deems appropriate.
The Company has entered into employment agreements with Todd R. Wagner,
the Chief Executive Officer and a director, and Mark Cuban, the President and a
director, which provide for indemnification for Mr. Wagner and Mr. Cuban to the
fullest extent allowed under applicable law against any and all judgments,
penalties (including excise and similar taxes), fines, settlements and
reasonable expenses (including attorneys' fees) actually incurred by him (net of
any related insurance proceeds or other amounts received by him or paid by or on
behalf of the Company on his behalf in compensation of such judgments,
penalties, fines, settlements or expenses) in connection with any threatened,
actual or completed action, suit or proceeding, whether civil, criminal,
arbitral, administrative or investigative, or any appeal in such action, suit or
proceeding, to which he was, is or is threatened to be made a named defendant or
respondent, because he is or was a director or officer of the Company, or is or
was serving at the request of the Company as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise.
The Company maintains policies of directors' and officers' liability
insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits.
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ITEM 9. UNDERTAKINGS.
(1) The undersigned 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;
(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; and
(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 (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 with or furnished to
the Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(b) 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.
(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 undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company'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.
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(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 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 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 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
Company 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 Dallas, State of Texas, on this 8th day of January,
1999.
BROADCAST.COM INC.
By: /s/ JACK A. RIGGS
--------------------------------------
Jack A. Riggs
Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Jack A. Riggs, 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, including post-effective amendments, to this Registration Statement,
and to file the same, with all exhibits thereto and other documents in
connection therewith, 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,
this Registration Statement has been signed on this 8th day of January, 1999, by
the following persons in the capacities indicated.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> /s/ TODD R. WAGNER <C>
----------------------------------- Chief Executive Officer
Todd R. Wagner (Principal Executive Officer)
/s/ MARK CUBAN Chairman of the Board
----------------------------------- and President
Mark Cuban
/s/ JACK A. RIGGS Chief Financial Officer (Principal
----------------------------------- Financial
Jack A. Riggs and Accounting Officer)
and Director
/s/ STEVEN D. LEEKE
----------------------------------- Director
Steven D. Leeke
/s/ RANDALL S. BATTAT
----------------------------------- Director
Randall S. Battat
/s/ JOSEPH W. AUTEM
----------------------------------- Director
Joseph W. Autem
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation of the Company, as amended (filed June 23,
1998), incorporated herein by reference to Exhibit 3.1.1 of the Company's Form S-1
Registration Statement.
4.2 Form of Common Stock Certificate, incorporated herein by reference to Exhibit 4.1
of Company's Form S-1 Registration Statement.
4.3 1998 Employee Stock Purchase Plan, incorporated herein by reference to Exhibit 10.7
of the Company's Form S-1 Registration Statement.
4.4 1998 Stock Option Plan, incorporated herein by reference to Exhibit 10.9 of the
Company's Form S-1 Registration Statement.
4.5 Form of the Company's Stock Option Agreement under the 1998 Stock Option Plan,
incorporated herein by reference to Exhibit 10.10 of the Company's Form S-1
Registration Statement.
4.6 1996 Non-Employee Directors Stock Option Plan (Amended and Restated as of June 1,
1997, as amended), incorporated herein by reference to Exhibit 10.11 of the
Company's Form S-1 Registration Statement.
4.7 1996 Stock Option Plan (Amended and Restated as of February 1, 1997), incorporated
herein by reference to Exhibit 10.8 of the Company's Form S-1 Registration
Statement.
5.1 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this Registration Statement).
</TABLE>
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EXHIBIT 5.1
January 8, 1999
(212) 351-4000 18530-00005
broadcast.com inc.
2914 Taylor Street
Dallas, Texas 75226
Re: broadcast.com inc. Registration Statement on Form S-8 for
4,312,577 shares of Common Stock
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement"), of broadcast.com inc., a Delaware corporation (the
"Company"), to be filed with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), in connection with the offering by the Company of up to
4,312,577 shares (the "Shares") of the Common Stock, par value $.01 per share,
of the Company, issuable pursuant to the terms of the Company's 1998 Employee
Stock Purchase Plan ("Stock Purchase Plan"), 1998 Stock Option Plan ("1998 Stock
Option Plan"), 1996 Non-Employee Directors Stock Option Plan (Amended and
Restated as of June 1, 1997, as amended) ("Non-Employee Directors Stock Option
Plan") and 1996 Stock Option Plan (Amended and Restated as of February 1, 1997)
("1996 Stock Option Plan").
For purposes of rendering this opinion, we have made such legal and
factual examinations as we have deemed necessary under the circumstances and, as
part of such examination, we have examined, among other things, originals and
copies, certified or otherwise, identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed necessary
or appropriate. For the purposes of such examination, we have assumed the
genuineness of all signatures on original documents and the conformity to
original documents of all copies submitted to us.
On the basis of and in reliance upon the foregoing examination and
assumptions, we are of the opinion that, assuming the Registration Statement
shall have become effective pursuant to the provisions of the Securities Act of
1933, as amended, the Shares being offered under the Stock Purchase Plan, the
1998 Stock Option Plan, the Non-Employee Directors Stock Option Plan and the
1996 Stock Option Plan (collectively, the "Plans"), when issued in accordance
with the Registration Statement and the provisions of the applicable Plan, and
upon receipt by the Company of the consideration as contemplated by such Plan,
will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons
<PAGE> 2
whose consent is required under Section 7 of the Securities Act or the General
Rules and Regulations of the Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 1, 1998, except
as to Note 10, which is as of July 9, 1998, relating to the financial statements
of broadcast.com inc. (the "Company"), which appears in the Prospectus
constituting part of the Registration Statement on Form (S-1 File No. 333-52877)
of the Company.
/s/ PricewaterhouseCoopers LLP
Dallas, Texas
January 4, 1999
