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Registration No.
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GOODNOISE CORPORATION
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(Exact name of registrant as specified in its charter)
Florida 65-0207877
- -------------------------------- ----------------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
1991 Broadway, Suite 200
Redwood City, CA 94063
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(Address of principal executive offices) (Zip code)
GOODNOISE CORPORATION
1998 Stock Option Plan
1998 Nonstatutory Stock Option Plan
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(Full title of the plan)
Gene Hoffman, Jr.
President & Chief Executive Officer
GOODNOISE CORPORATION
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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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 Par Value $0.01
2,946,750 $ 3.5176 $ 10,365,487.80
7,850 $21.5625 $ 169,265.63
1998 Nonstatutory Stock Option Plan
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Common Stock Par Value $0.01
3,328,000 $10.3753 $ 34,528,998.40
2,672,000 $21.5625 $ 57,615,000.00
TOTALS 8,954,600 $102,678,751.83 $28,544.69
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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 shares subject to outstanding but unexercised options,
the price is computed on the basis of the weighted average exercise price. As
to the remaining shares, the price is based upon the average of the high and low
prices of the Common Stock on July 8, 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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GoodNoise Corporation (the "Company") hereby incorporates by reference
in this registration statement the following documents:
(a) The Company's report on Form 10-SB filed pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), containing audited financial statements for the Company's latest fiscal
year ended June 30, 1998 as filed with the Securities and Exchange Commission on
December 24, 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of 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 filed under the Exchange Act,
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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The Florida Business Corporation Act permits the indemnification of
officers, directors, and other corporate agents under certain circumstances and
subject to certain limitations. The Company's Articles of Incorporation provide
that the Company has the power to indemnify its directors, officers, employees,
and agents to the full extent permitted by Florida law. In addition, the
Company has entered into separate indemnification agreements with its directors
and officers which require the Company, among other things, to indemnify them
against certain liabilities which may arise by reason of their status or service
(other than liabilities arising from willful misconduct of a culpable nature).
These indemnification
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provisions may be sufficiently broad to permit indemnification of the Company's
officers and directors for liabilities (including reimbursement of expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act").
Item 7. Exemption From Registration Claimed
-----------------------------------
Not applicable.
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;
(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
- -------- -------
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
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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 July 12, 1999.
GOODNOISE CORPORATION
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
--------------------------------
The officers and directors of GOODNOISE Corporation 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, Chief Executive Officer July 12, 1999
- ---------------------------------- and Director (Principal Executive -------------------
Gene Hoffman, Jr. Officer)
/s/ Joseph Howell Executive Vice President and Chief July 12, 1999
- ---------------------------------- Financial Officer (Principal -------------------
Joseph Howell Financial and Accounting Officer)
/s/ Robert H. Kohn Chairman of the Board and Secretary July 12, 1999
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Robert H. Kohn
/s/ Ralph Peer, II Director July 12, 1999
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Ralph Peer, II
Director
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Tor Braham
Director
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Ed Rosenblatt
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EXHIBIT INDEX
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4.1 Certificate of Incorporation of the Company is incorporated by reference
to Exhibit 3.1 to the Company's Form 10-SB filed with the Securities and
Exchange Commission
4.2 Bylaws of the Company are incorporated by reference to Exhibit 3.2 to
the Company's Form 10-SB filed with the Securities and Exchange
Commission
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
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.graycary.com
July 12, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for GoodNoise Corporation, a Florida corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 8,954,600 shares of the
Common Stock of the Company which may be issued pursuant to the exercise of
options granted under the GoodNoise Corporation 1998 Stock Option Plan and 1998
Nonstatutory Stock Option 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 Florida and the federal law of the United States. As to matters of
Florida 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 8,954,600 shares of
Common Stock which may be issued upon exercise of options 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 October 8, 1998 relating to the
consolidated financial statements of Goodnoise Corporation, which appears in
Goodnoise Corporation's registration statement Form 10SB12G/A dated December 24,
1998.
/s/ PricewaterhouseCoopers LLP
San Jose, California
July 9, 1999
