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Registration No._________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMUSIC.COM INC.
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(Exact name of registrant as specified in its charter)
Delaware 65-0207877
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
1991 Broadway, Suite 200
Redwood City, CA 94063
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(Address of principal executive offices) (Zip code)
EMUSIC.COM INC.
1998 Stock Option Plan
1999 Employee Stock Purchase Plan
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(Full title of the plan)
Gene Hoffman, Jr.
President & Chief Executive Officer
EMUSIC.COM INC.
1991 Broadway, Suite 200
Redwood City, CA 94063
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: 650-216-0200.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Title of Proposed maximum Proposed maximum
Securities to be Amount to be offering price aggregate offering Amount of
registered/1/ registered/2/ per share/3/ price/3/ registration fee
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<S> <C> <C> <C> <C>
1998 Stock Option Plan
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Common Stock 3,000,000 $13.7188 $41,156,400.00
Par Value $0.01
1999 Employee Stock Purchase Plan
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Common Stock 250,000 $11.6609 $ 2,915,225.00
Par Value $0.01
TOTALS 3,250,000 $44,071,625.00 $12,251.91
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/1/ The securities to be registered include options to acquire Common Stock.
/2/ Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
/3/ Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to the shares under the 1998 Stock Option Plan, the
$13.7188 price is based upon the average of the high and low prices of the
Common Stock on August 30, 1999, as reported on the Nasdaq National Market. The
1999 Employee Stock Purchase Plan establishes a purchase price equal to 85% of
the fair market value of the Company's Common Stock, and, therefore, the price
for shares under this plan is based upon 30% of the average of the high and low
prices of the Common Stock on August 30, 1999, as reported on the Nasdaq
National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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ITEM 3. Incorporation of Documents by Reference
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EMusic.com Inc. (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's latest prospectus filed pursuant to Rule 424(b)
under the Securities Act of 1933, as amended (the "Securities Act") containing
audited financial statements for the Company's latest fiscal year ended June 30,
1999. The prospectus is included in the Company's Registration Statement on Form
S-1 (No. 333-83685, filed on July 23, 1999) and Form S-1/A (No. 333-83685, filed
on August 9, 1999).
(B) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the registrant document referred to in (a) above.
(C) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10-SB, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company 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 hereby have been sold or which deregisters all securities
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
documents.
Item 4. Description of Securities
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The class of securities to be offered is registered under Section 12
of the Exchange Act.
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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Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on a director's duty of
loyalty or liability for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law,
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illegal payment of dividends or stock redemptions or repurchases, or for any
transaction from which the director derives an improper personal benefit. As
permitted by the statute, the Company has adopted provisions in its Certificate
of Incorporation which eliminate to the fullest extent permissible under
Delaware law the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty of
care.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers, directors, employees and agents of
a corporation. The Bylaws of the Company provide for indemnification of its
directors, officers, employees and agents to the full extent permitted by under
Delaware law, including those circumstances in which indemnification would
otherwise be discretionary under Delaware Law. The Company's Bylaws also empower
it to enter into indemnification agreements with its directors and officers and
to purchase insurance on behalf of any person whom it is required or permitted
to indemnify. The Company has entered into agreements with its directors and
certain of its executive officers that require the Company to indemnify such
persons to the fullest extent permitted under Delaware law against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or an executive officer
of the Company or any of its affiliated enterprises. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
Section 145 Of The General Corporation Law Of The State of Delaware
Provides For Indemnification In Terms Sufficiently Broad To Indemnify Such
Individuals, Under Certain Circumstances, For Liabilities (Including
Reimbursement Of Expenses Incurred) Arising Under The Securities Act.
Item 7. Exemption From Registration Claimed
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Inapplicable.
Item 8. Exhibits
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See Exhibit Index.
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;
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(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;
and
(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)(i) and (l)(ii) do not apply if the
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information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in 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 that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURE
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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 Redwood City, State of California, on August 13,
1999.
EMUSIC.COM INC.
By: /s/ Gene Hoffman, Jr.
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Gene Hoffman, Jr.
President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
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The officers and directors of EMusic.com Inc. whose signatures appear
below, hereby constitute and appoint Gene Hoffman, Jr. and Joseph Howell, and
each of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this registration statement on Form
S-8, and each of the undersigned does hereby ratify and confirm all that each of
said attorney and agent, or their or his substitutes, shall 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 by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Gene Hoffman, Jr. President and Chief Executive Officer August 13, 1999
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Gene Hoffman, Jr.
/s/ Joseph Howell Executive Vice President, Chief August 13, 1999
- ---------------------------------- Financial Officer -------------------
Joseph Howell
/s/ Robert H. Kohn Chairman August 13, 1999
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Robert H. Kohn
/s/ Ralph Peer, II Director August 13, 1999
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Ralph Peer, II
/s/ Tor Braham Director August 13, 1999
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Tor Braham
__________________________________ Director
Ed Rosenblatt
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EXHIBIT INDEX
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4.1 Amended and Restated Certificate of Incorporation of the Company is
incorporated by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1 filed with the Securities and Exchange Commission on
July 23, 1999 (No. 333-83685)
4.2 Bylaws of the Company are incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1 filed with the Securities and
Exchange Commission on July 23, 1999 (No. 333-83685)
4.4 Agreement and Plan of Merger dated July 21, 1999 between EMusic.com Inc., a
Florida Corporation and EMusic.com Inc. a Delaware Corporation is
incorporated by reference to Exhibit 2.4(b) to the Company's Registration
Statement on Form S-1 filed with the Securities and Exchange Commission on
July 23, 1999 (File No. 333-83685)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Independent Accountants
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, Ca 94301-1825
Phone: 650-328-6561 Fax: 650-327-3699 www.gcwf.com
August 31, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for EMusic.com Inc., a Delaware corporation (the "Company"), we
are rendering this opinion in connection with the registration under the
Securities Act of 1933, as amended, of up to 3,250,000 shares of the Common
Stock, $0.01 par value, of the Company which may be issued pursuant to the
exercise of options and purchase rights granted under the EMusic.com Inc. 1998
Stock Option Plan and 1999 Employee Stock Purchase Plan (the "Plans").
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters
of Delaware corporation law, we have based our opinion solely upon our
examination of such laws and the rules and regulations of the authorities
administering such laws, all as reported in standard, unofficial compilations.
we have not obtained opinions of counsel licensed to practice in jurisdictions
other than the State Of California.
Based on such examination, we are of the opinion that the 3,250,000 shares of
Common Stock which may be issued upon exercise of options and purchase rights
granted under the Plans are duly authorized shares of the Company's Common
Stock, and, when issued against receipt of the consideration therefor in
accordance with the provisions of the Plans, will be validly issued, fully paid
and nonassessable. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement referred to above and the use of our name
wherever it appears in said Registration Statement.
Respectfully submitted,
/s/ GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
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We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 26,1999 relating to the financial
statements of EMusic.com Inc., which appears in EMusic.com Inc.'s Registration
Statement on Form S-1/A (Registration Number 333-83685) which was filed on
August 9, 1999.
/S/ Pricewaterhousecoopers LLP
San Jose, California
September 1, 1999
