<PAGE>
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.
----------------------------------------------------
(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
-----------------------------------------------------
(Address of principal executive offices) (Zip code)
Individual Stock Option Agreements Granted Under the CDuctive.com Inc 1998
Amended and Restated Stock Option Plan and Assumed by
EMusic.com Inc.
-----------------------------------------------------
(Full title of the plan)
Gene Hoffman, Jr.
President & Chief Executive Officer
EMUSIC.COM INC.
1991 Broadway, Suite 200
Redwood City, CA 94063
-----------------------------------------------------
(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.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------
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
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Assumed Options
- ---------------
Common Stock 290,538 $5.2241 $1,517,799.56 $400.70
Par Value $0.001
</TABLE>
- ---------------------------------------------
/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. The price of the Assumed Options is computed on the basis
of the weighted average exercise price of the Assumed Options.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference
---------------------------------------
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.
(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
-------------------------
The class of securities to be offered is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
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
<PAGE>
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
-----------------------------------
Inapplicable.
Item 8. Exhibits
--------
See Exhibit Index.
Item 9. Undertakings
------------
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
<PAGE>
(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.
<PAGE>
SIGNATURE
---------
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 January 11,
2000.
EMUSIC.COM INC.
By: /s/ Peter M. Astiz
-------------------------
Peter M. Astiz
Executive Vice President
<PAGE>
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.
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------------------- -------------------------------------- -------------------
<S> <C> <C>
/s/ Gene Hoffman, Jr. Director, President and January 10, 2000
- ---------------------------------- Chief Executive Officer ----------------
Gene Hoffman, Jr.
/s/ Joseph Howell Executive Vice President, January 10, 2000
- ---------------------------------- Chief Financial Officer ----------------
Joseph Howell
/s/ Robert H. Kohn Director, Chairman and January 10, 2000
- ---------------------------------- Assistant Secretary ----------------
Robert H. Kohn
/s/ Ralph Peer, II Director January 10, 2000
- ---------------------------------- ----------------
Ralph Peer, II
Director
- --------------------------------- ----------------
Tor Braham
Director
- --------------------------------- ----------------
Ed Rosenblatt
</TABLE>
<PAGE>
EXHIBIT INDEX
-------------
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., 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 Eisner LLP
24 Power of Attorney (included in signature pages to this registration
statement)
<PAGE>
EXHIBIT 5
January 11, 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 the registration under the
Securities Act of 1933, as amended, of up to 290,538 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 Amended and Restated Stock
Option Plan of CDuctive.com Inc. (the "Plan") which have been assumed by the
Company.
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 the 290,538 shares of Common
Stock which may be issued upon exercise of options and purchase rights granted
under the 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
<PAGE>
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 of EMusic.com Inc., our report dated March 31, 1999
relating to the financial statements of Creative Fulfillment Inc. and our
report dated July 21, 1999 relating to the financial statements of Internet
Underground Music Archive Inc. ("IUMA") which appear in EMusic.com Inc.'s
Registration Statement on Form S-1 (Registration Number 333-83685) which
became effective on September 24, 1999.
/s/ PricewaterhouseCoopers LLP
San Jose, California
January 10, 2000
<PAGE>
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 CDuctive.com Inc. 1998 Amended and Restated Stock Option Plan
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
January 10, 2000
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
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
January 10, 2000
