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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 94-3290594
- ------------------------------------ ------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1991 Broadway, Second Floor
Redwood City, CA 94063
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(Address of principal executive offices) (Zip code)
Individual Stock Option Agreements Granted Under the
Tunes.com Inc. 1997 and 1999 Stock Option Plans
and Assumed by EMusic.com Inc.
EMusic.com Inc. 1998 Non-Statutory Stock Option Plan
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(Full title of the plan)
Gene Hoffman, Jr.
President & Chief Executive Officer
EMUSIC.COM INC.
1991 Broadway, Second Floor
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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Assumed Options
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<S> <C> <C> <C> <C>
Common Stock 1,594,459 $12.06 $19,229,175.54 $5,076.50
Par Value $0.001
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EMusic.com Inc.1998 Non-Statutory Stock Option Plan
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<S> <C> <C> <C> <C>
Common Stock 4,000,000 $ 2.35 $9,400,000.00 $2,481.60
Par Value $0.001
Totals 5,594,459 $28,629,175.54 $7,558.10
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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
granted under the Tunes.com Inc. 1997 Stock Option Plan or the Tunes.com Inc.
1999 Stock Option Plan, the price is computed on the basis of the weighted
average exercise price of the outstanding options under the plans. As to the
shares reserved for issuance upon the exercise of options to be granted under
the EMusic.com Inc. 1998 Non-Statutory Stock Option Plan, the price is based
upon the average of the high and low prices of the Common Stock on April 24,
2000, 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 Annual Report on Form 10-K for the fiscal year ended
June 30, 1999, containing audited financial statements for the Company's most
recent fiscal year.
(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 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 the 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, 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
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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 of 1933, as
amended (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;
(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
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(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 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 April 26, 2000.
EMUSIC.COM INC.
By: /s/ Peter M. Astiz
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Peter M. Astiz
Executive Vice President
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SIGNATURES AND POWER OF ATTORNEY
--------------------------------
The officers and directors of EMusic.com Inc. whose signatures appear
below, hereby constitute and appoint Gene Hoffman, Jr., Joseph Howell and Peter
M. Astiz, 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. Director, President and April 26, 2000
- ---------------------------------- Chief Executive Officer --------------
Gene Hoffman, Jr. (Principal Executive Officer)
/s/ Joseph Howell Executive Vice President, April 26, 2000
- ---------------------------------- Chief Financial Officer --------------
Joseph Howell (Principal Financial and
Accounting Officer)
/s/ Robert H. Kohn Director, Chairman and April 26, 2000
- ---------------------------------- Assistant Secretary --------------
Robert H. Kohn
/s/ Ralph Peer, II Director April 26, 2000
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Ralph Peer, II
/s/ Tor Braham Director April 26, 2000
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Tor Braham
/s/ Ed Rosenblatt Director April 26, 2000
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Ed Rosenblatt
/s/ Howard Tullman Director April 26, 2000
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Howard Tullman
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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)
4.3 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)
4.4 Agreement and Plan of Reorganization by and among EMusic.com Inc., GNB
Corporation, Tunes.com Inc. ("Tunes") and the principal shareholders of
Tunes, dated as of November 29, 1999 is incorporated by reference to
Appendix A to the Company's Registration Statement on Form S-4 filed with
the Securities and Exchange Commission on January 12, 2000.
4.5 Agreement and Plan of Reorganization by and among EMusic.com Inc., GNA
Corporation, Group K Inc., d.b.a. CDuctive and the principal shareholders
of CDuctive, dated as of November 15, 1999 is incorporated by reference
to Exhibit 2 to the Company's Registration Statement on Form 8-K filed
with the Securities and Exchange Commission on November 22, 1999.
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of Richard A. Eisner & Company, LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
April 26, 2000
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"), I
am rendering this opinion in connection with (1) the registration under the
Securities Act of 1933, as amended, of up to 1,594,459 shares of the Common
Stock, $0.001 par value, of the Company which may be issued pursuant to the
exercise of options and purchase rights granted under the 1997 and 1999 Stock
Option Plans of Tunes.com Inc. (collectively, the "Tunes Plan") which have been
assumed by the Company and (2) of up to 4,000,000 shares of the Common Stock,
$0.001 par value, of the Company which may be issued pursuant to the exercise of
options and purchase rights granted under the 1998 Nonstatutory Stock Option
Plan of EMusic.com Inc. (the "EMusic Plan").
I have examined all instruments, documents and records which I deemed relevant
and necessary for the basis of my opinion hereinafter expressed. In such
examination, I have assumed the genuineness of all signatures and the
authenticity of all documents submitted as originals and the conformity to the
originals of all documents submitted as copies. I am admitted to practice only
in the State of California and I 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, I have based my opinion solely upon my examination of such laws
and the rules and regulations of the authorities administering such laws, all as
reported in standard, unofficial compilations. I have not obtained opinions of
counsel licensed to practice in jurisdictions other than the State Of
California.
Based on such examination, I am of the opinion that (1) the 1,594,459 shares of
Common Stock which may be issued upon exercise of options and purchase rights
granted under the Tunes Plan and (2) the 4,000,000 shares of Common Stock which
may be issued upon exercise of options and purchase rights granted under the
EMusic Plan 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 Plan, will be validly issued, fully paid and nonassessable. I
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement referred to above and the use of my name wherever it appears in said
Registration Statement.
Respectfully submitted,
/s/ Peter M. Astiz, Esq.
Peter M. Astiz, Esq.
General Counsel
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
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, which appears in EMusic.com Inc.'s Annual Report on Form
10-K for the year ended June 30, 1999. We also consent to the incorporation by
reference of our reports dated March 31, 1999 and July 21, 1999 relating to the
financial statements of Creative Fulfillment Inc. and Internet Underground
Music Archive Inc. ("IUMA"), which appear in the Reports on Form 8-K dated
January 31, 1999 and June 11, 1999, respectively.
/s/ PricewaterhouseCoopers LLP
San Jose, California
April 24, 2000
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EXHIBIT 23.3
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Individual Stock Option Agreements Granted Under
the Tunes.com Inc. 1997 and 1999 Stock Option Plans and Assumed by EMusic.com
Inc. of our report dated January 26, 1999 with respect to the consolidated
financial statements of Tunes.com Inc. and to our report dated June 22, 1998
with respect to the financial statements of Tunes Network, Inc. included in
Amendment No. 1 to the Registration Statement (Form S-1 No. 333-88969) and
related Prospectus of EMusic.com Inc. filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
April 24, 2000
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EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of EMusic.com Inc., of our report dated November 19, 1999 on our
audit of the financial statements of Group K Inc., as of December 31, 1998 and
1997 and for the period June 16, 1997 (inception) through December 31, 1998,
the year ended December 31, 1998 and the period June 16, 1997 (inception)
through December 31, 1997 included in the Form 8-K filed with the Securities
and Exchange Commission.
/s/ Richard A. Eisner & Company, LLP
New York, New York
April 24, 2000
