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As Filed with the Securities and Exchange Commission on August 25, 2000
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LAUNCH MEDIA, INC.
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(Exact name of registrant as specified in its charter)
Delaware 95-4463753
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
2700 Pennsylvania Avenue
Santa Monica, CA 90404
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(Address of principal executive offices) (Zip code)
LAUNCH MEDIA, INC.
1998 STOCK OPTION PLAN
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(Full title of the plan)
Jeffrey M. Mickeal
Chief Financial Officer and Secretary
Launch Media, Inc.
2700 Pennsylvania Avenue
Santa Monica, CA 90404
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (310) 526-4300.
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
<TABLE>
<CAPTION>
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Proposed Proposed
maximum maximum
Title of Securities Amount to be offering price aggregate Amount of
to be registered(1) registered(2) per share(3) offering price(3) registration fee
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<S> <C> <C> <C> <C>
1998 Stock Option Plan
Common Stock
Par Value $0.001 1,200,000 $6.97 $8,364,000 $2,208.10
</TABLE>
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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. The price is based upon the average of the high and low
prices of the Common Stock on August 21, 2000, as reported on the Nasdaq
National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Launch Media, Inc. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K, filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), containing audited financial information for the
Company's latest fiscal year.
(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 8-A filed on April 7, 1999 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
The class of securities to be offered is registered under Section
12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
The validity of the shares of Common Stock to be offered
hereunder has been passed upon for the Company by Gray Cary Ware & Freidenrich
LLP ("GCWF"). James Koshland, an attorney and a partner of GCWF, has been a
director of the Company since June 7, 2000.
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 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
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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
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 of 1933, as amended (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 (1)(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
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 Santa Monica, State of California, on August 25,
2000.
LAUNCH MEDIA, INC.
By: /s/ Jeffrey M. Mickeal
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Jeffrey M. Mickeal
Chief Financial Officer and Secretary
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Launch Media, Inc. whose signatures appear
below, hereby constitute and appoint Jeffrey M. Mickeal, 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/ David B. Goldberg Chairman of the Board and Chief
--------------------------------- Executive Officer August 25, 2000
David B. Goldberg (Principal Executive Officer)
/s/ Robert D. Roback
--------------------------------- President and Director August 25, 2000
Robert D. Roback
/s/ Jeffrey M. Mickeal Chief Financial Officer and
--------------------------------- Secretary August 25, 2000
Jeffrey M. Mickeal (Principal Financial and
Accounting Officer)
/s/ Thomas C. Hoegh
--------------------------------- Director August 25, 2000
Thomas C. Hoegh
/s/ Richard D. Snyder
--------------------------------- Director August 25, 2000
Richard D. Snyder
/s/ James M. Koshland
--------------------------------- Director August 25, 2000
James M. Koshland
/s/ Warren Littlefield
--------------------------------- Director August 25, 2000
Warren Littlefield
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company is incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on Form
SB-2 filed with the Securities and Exchange Commission on March 31, 1999
(No. 333-72433)
4.2 Amended and Restated Bylaws of the Company are incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form SB-2 filed with
the Securities and Exchange Commission on March 31, 1999 (No. 333-72433)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
24 Power of Attorney (included in signature pages to this registration
statement)
