<PAGE>
As filed with the Securities and Exchange Commission on November 17, 1999
Registration No.333-_____
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
--------------------------
AUDIBLE, INC.
(Exact name of registrant as specified in its charter)
65 Willowbrook Boulevard
Delaware Wayne, New Jersey 07470 22-3407945
(973) 890-4070
(State or other (Address of principal executive offices) (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
Audible, Inc. 1999 Stock Incentive Plan
(Full title of the plan)
<TABLE>
<S> <C>
Copy to:
DONALD R. KATZ NANCY A. SPANGLER, ESQ.
Acting President and Chief Executive Officer Piper Marbury Rudnick & Wolfe LLP
Chairman of the Board of Directors Commerce Executive Park III,
Audible, Inc. Suite 610
65 Willowbrook Boulevard 1850 Centennial Park Drive
Wayne, New Jersey 07470 Reston, Virginia 20191-1517
(973) 890-4070 (703) 391-7100
</TABLE>
(Name, address and telephone number, including area code, of agent for service)
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAX-
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE IMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED/(1)/ PER SHARE(2) OFFERING PRICE (2) REGISTRATION FEE(2)
---------------- -------------- --------- ----------------- -------------------
<S> <C> <C> <C> <C>
Common Stock (par value $.01 9,000,000 $9.5625 $86,062,500 $23,925.38
per share)
</TABLE>
- ------------------------------------------------------------------------------
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number of
shares of Common Stock that may be offered or issued by reason of stock
splits, stock dividends or similar transactions.
(2) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(c) and (h). The proposed maximum offering price per
share, proposed maximum aggregate offering price and the amount of the
registration fee are based on the average of the high and low prices of
Audible, Inc. Common Stock reported on the Nasdaq National Market on
November 10, 1999 (i.e., $9.5625).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be included in this Form S-8 Registration Statement
pursuant to introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents which have been filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
(a) Prospectus filed pursuant to Rule 424(b)(1) on July 16, 1999,
Quarterly Report on Form 10-Q for the quarter ended June 30, 1999 and
Quarterly Report on Form 10-Q for the quarter ended September 30,
1999;
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), since
the end of the fiscal year covered by the document referred to in (a)
above; and
(c) Description of Common Stock of the Registrant contained or
incorporated in the registration statements filed by the Registrant
under the Exchange Act, including any amendments or reports filed for
the purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part of this Registration Statement from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
-------------------------
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. None.
--------------------------------------
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
As permitted by the General Corporation Law of Delaware ("GCLD"),
Section Ninth of the Amended and Restated Certificate of Incorporation (the
"Certificate") of Audible, Inc. (the "Corporation") provides for indemnification
of directors and officers of the Corporation, as follows:
To the extent permitted by law, the Corporation shall fully indemnify
any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason
of the fact that such person is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as
a director or officer
<PAGE>
of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with
such action, suit or proceeding.
The Corporation may advance expenses (including attorneys' fees)
incurred by a director or officer in advance of the final disposition
of such action, suit or proceeding upon the receipt of an undertaking
by or on behalf of the director or officer to repay such amount if it
shall ultimately be determined that such director or officer is not
entitled to indemnification.
Also, the Corporation's Amended and Restated By-Laws contain
indemnification procedures that implement the indemnification provisions of the
Certificate. The GCLD permits a corporation to indemnify its directors and
officers, among others, against judgments, fines, settlements and reasonable
expenses actually incurred by them in connection with any proceedings to which
they may be a party by reason of service in those or other capacities, if such
person acted in good faith and in a manner which such person reasonably believed
to be in or not opposed to the best interests of the Corporation, and with
respect to any criminal action or proceedings, had no reasonable cause to
believe that such conduct was unlawful.
As permitted by the GCLD, Section Eighth of the Corporation's Certificate
provides for limitation of liability of directors of the Corporation, as
follows:
No director of the Corporation shall be personally liable to the
Corporation or to any stockholder of the Corporation for monetary
damages for breach of fiduciary duty as a director, provided that this
provision shall not limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involved intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of Delaware, or (iv)
for any transaction from which the director derived an improper
personal benefit.
If the General Corporation Law of Delaware or any other statute of the
State of Delaware hereafter is amended to authorize the further
elimination or limitation of the liability of directors of the
Corporation, then the liability of a director of the Corporation shall
be limited to the fullest extent permitted by the statutes of the
State of Delaware, as so amended, and such elimination or limitation
of liability shall be in addition to, and not in lieu of, the
limitation on the liability of a director provided by the foregoing
provisions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
---------------------------------------------
ITEM 8. EXHIBITS.
--------
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1 Audible, Inc. 1999 Stock Incentive Plan (as adjusted to reflect stock
split effective May 1999).
4.2 Amended and Restated Certificate of Incorporation (incorporated by
reference to the Corporation's Registration Statement on Form S-1, as
amended (File No. 333-76985)).
4.3 Amended and Restated By-Laws (incorporated by reference to the
Corporation's Registration Statement on Form S-1, as amended (File No.
333-76985)).
<PAGE>
5.1 Opinion of Piper Marbury Rudnick & Wolfe LLP (contains Consent of
Counsel) as to the legal validity of securities being registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney.
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;
(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 this Registration Statement;
(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.
Paragraphs 1(i) and 1(ii) above 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 of Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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
of 1933 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 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 Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
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 Wayne, State of New Jersey, on the 12th day of
November, 1999.
AUDIBLE, INC.
By: /s/ Donald R. Katz
------------------
Donald R. Katz,
Acting President and Chief Executive
Officer
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this Form S-8
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Donald R. Katz Acting President and Chief Executive Officer November 12, 1999
- -------------------
Donald R. Katz Chairman of the Board of Directors
(Acting Principal Executive Officer)
/s/ Andrew P. Kaplan Vice President, Finance and Administration November 12, 1999
- --------------------
Andrew P. Kaplan and Chief Financial Officer
(Principal Financial and Accounting Officer)
</TABLE>
A majority of the Board of Directors (Donald R. Katz, Timothy Mott, R.
Bradford Burnham, Thomas P. Hirschfeld, W. Bingham Gordon, Winthrop Knowlton,
Richard Brass).
<TABLE>
<S> <C> <C>
/s/ Donald R. Katz For Himself and as Attorney-in-Fact November 12, 1999
- --------------------
Donald R. Katz
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1 Audible, Inc. 1999 Stock Incentive Plan (as adjusted to reflect
stock split effective May 1999).
4.2 Amended and Restated Certificate of Incorporation (incorporated
by reference to the Corporation's Registration Statement on Form
S-1, as amended (File No. 333-76985)).
4.3 Amended and Restated By-Laws (incorporated by reference to the
Corporation's Registration Statement on Form S-1, as amended
(File No. 333-76985)).
5.1 Opinion of Piper Marbury Rudnick & Wolfe LLP (contains Consent of
Counsel) as to the legal validity of securities being registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney.
<PAGE>
Exhibit 4.1
AUDIBLE, INC.
1999 STOCK INCENTIVE PLAN
(Share numbers adjusted to reflect 3:2 stock split effective May 1999)
1. Establishment, Purpose and Types of Awards
AUDIBLE, INC., a Delaware corporation (the "Company"), hereby establishes
the AUDIBLE, INC. 1999 Stock Incentive Plan (the "Plan"). The purpose of the
Plan is to promote the long-term growth and profitability of the Company by (i)
providing key people with incentives to improve stockholder value and to
contribute to the growth and financial success of the Company, and (ii) enabling
the Company to attract, retain and reward the best-available persons.
The Plan permits the granting of stock options (including incentive stock
options qualifying under Code section 422 and nonqualified stock options), stock
appreciation rights, restricted or unrestricted stock awards, phantom stock,
performance awards, other stock-based awards, or any combination of the
foregoing.
2. Definitions
Under this Plan, except where the context otherwise indicates, the
following definitions apply:
(a) "Affiliate" shall mean any entity, whether now or hereafter existing,
which controls, is controlled by, or is under common control with, the Company
(including, but not limited to, joint ventures, limited liability companies, and
partnerships). For this purpose, "control" shall mean ownership of 50% or more
of the total combined voting power or value of all classes of stock or interests
of the entity.
(b) "Award" shall mean any stock option, stock appreciation right, stock
award, phantom stock award, performance award, or other stock-based award.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended, and
any regulations promulgated thereunder.
(e) "Common Stock" shall mean shares of common stock of the Company, par
value of one cent ($0.01) per share.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(g) "Fair Market Value" shall mean, with respect to a share of the
Company's Common Stock for any purpose on a particular date, the value
determined by the Administrator in good faith. However, if the Common Stock is
registered under Section 12(b) of the Exchange Act, "Fair Market Value" shall
mean, as applicable, (i) either the closing price or the average of the high and
low sale price on the relevant date, as determined in the Administrator's
discretion, quoted on the New York Stock Exchange, the American Stock Exchange,
or the Nasdaq National Market; (ii) the last sale price on the relevant date
quoted on the Nasdaq SmallCap Market; (iii) the average of the high bid and low
asked
<PAGE>
prices on the relevant date quoted on the Nasdaq OTC Bulletin Board Service or
by the National Quotation Bureau, Inc. or a comparable service as determined in
the Administrator's discretion; or (iv) if the Common Stock is not quoted by any
of the above, the average of the closing bid and asked prices on the relevant
date furnished by a professional market maker for the Common Stock, or by such
other source, selected by the Administrator. If no public trading of the Common
Stock occurs on the relevant date, then Fair Market Value shall be determined as
of the next preceding date on which trading of the Common Stock does occur.
(h) "Grant Agreement" shall mean a written document memorializing the
terms and conditions of an Award granted pursuant to the Plan and shall
incorporate the terms of the Plan.
(i) "Parent" shall mean a corporation, whether now or hereafter existing,
within the meaning of the definition of "parent corporation" provided in Code
section 424(e), or any successor thereto.
(j) "Subsidiary" and "subsidiaries" shall mean only a corporation or
corporations, whether now or hereafter existing, within the meaning of the
definition of "subsidiary corporation" provided in Code section 424(f), or any
successor thereto.
3. Administration
(a) Administration of the Plan. The Plan shall be administered by the
Board or by such committee or committees as may be appointed by the Board from
time to time (the Board, committee or committees hereinafter referred to as the
"Administrator").
(b) Powers of the Administrator. The Administrator shall have all the
powers vested in it by the terms of the Plan, such powers to include authority,
in its sole and absolute discretion, to grant Awards under the Plan, prescribe
Grant Agreements evidencing such Awards and establish programs for granting
Awards.
The Administrator shall have full power and authority to take all other
actions necessary to carry out the purpose and intent of the Plan, including,
but not limited to, the authority to: (i) determine the eligible persons to
whom, and the time or times at which Awards shall be granted; (ii) determine the
types of Awards to be granted; (iii) determine the number of shares to be
covered by or used for reference purposes for each Award; (iv) impose such
terms, limitations, restrictions and conditions upon any such Award as the
Administrator shall deem appropriate; (v) modify, amend, extend or renew
outstanding Awards, or accept the surrender of outstanding Awards and substitute
new Awards (provided however, that, except as provided in Section 7(d) of the
Plan, any modification that would materially adversely affect any outstanding
Award shall not be made without the consent of the holder); (vi) accelerate or
otherwise change the time in which an Award may be exercised or becomes payable
and to waive or accelerate the lapse, in whole or in part, of any restriction or
condition with respect to such Award, including, but not limited to, any
restriction or condition with respect to the vesting or exercisability of an
Award following termination of any grantee's employment or other relationship
with the Company; and (vii) establish objectives and conditions, if any, for
earning Awards and determining whether Awards will be paid after the end of a
performance period.
The Administrator shall have full power and authority, in its sole and
absolute discretion, to administer and interpret the Plan and to adopt and
interpret such rules, regulations, agreements, guidelines
<PAGE>
and instruments for the administration of the Plan and for the conduct of its
business as the Administrator deems necessary or advisable.
(c) Non-Uniform Determinations. The Administrator's determinations under
the Plan (including without limitation, determinations of the persons to receive
Awards, the form, amount and timing of such Awards, the terms and provisions of
such Awards and the Grant Agreements evidencing such Awards) need not be uniform
and may be made by the Administrator selectively among persons who receive, or
are eligible to receive, Awards under the Plan, whether or not such persons are
similarly situated.
(d) Limited Liability. To the maximum extent permitted by law, no member
of the Administrator shall be liable for any action taken or decision made in
good faith relating to the Plan or any Award thereunder.
(e) Indemnification. To the maximum extent permitted by law and by the
Company's charter and by-laws, the members of the Administrator shall be
indemnified by the Company in respect of all their activities under the Plan.
(f) Effect of Administrator's Decision. All actions taken and decisions
and determinations made by the Administrator on all matters relating to the Plan
pursuant to the powers vested in it hereunder shall be in the Administrator's
sole and absolute discretion and shall be conclusive and binding on all parties
concerned, including the Company, its stockholders, any participants in the Plan
and any other employee, consultant, or director of the Company, and their
respective successors in interest.
4. Shares Available for the Plan; Maximum Awards
Subject to adjustments as provided in Section 7(d) of the Plan, the shares
of Common Stock that may be issued with respect to Awards granted under the Plan
shall not exceed an aggregate of 9,000,000 shares of Common Stock. The Company
shall reserve such number of shares for Awards under the Plan, subject to
adjustments as provided in Section 7(d) of the Plan. If any Award, or portion of
an Award, under the Plan expires or terminates unexercised, becomes
unexercisable or is forfeited or otherwise terminated, surrendered or canceled
as to any shares, or if any shares of Common Stock are surrendered to the
Company in connection with any Award (whether or not such surrendered shares
were acquired pursuant to any Award), the shares subject to such Award and the
surrendered shares shall thereafter be available for further Awards under the
Plan; provided, however, that any such shares that are surrendered to the
Company in connection with any Award or that are otherwise forfeited after
issuance shall not be available for purchase pursuant to incentive stock options
intended to qualify under Code section 422.
5. Participation
Participation in the Plan shall be open to all employees, officers,
directors, and consultants of the Company, or of any Affiliate of the Company,
as may be selected by the Administrator from time to time.
6. Awards
The Administrator, in its sole discretion, establishes the terms of all
Awards granted under the Plan. Awards may be granted individually or in tandem
with other types of Awards. All Awards are subject to the terms and conditions
provided in the Grant Agreement.
<PAGE>
(a) Stock Options. The Administrator may from time to time grant to
eligible participants Awards of incentive stock options as that term is defined
in Code section 422 or nonqualified stock options; provided, however, that
Awards of incentive stock options shall be limited to employees of the Company
or of any Parent or Subsidiary of the Company. Options intended to qualify as
incentive stock options under Code section 422 must have an exercise price at
least equal to Fair Market Value on the date of grant, but nonqualified stock
options may be granted with an exercise price less than Fair Market Value. No
stock option shall be an incentive stock option unless so designated by the
Administrator at the time of grant or in the Grant Agreement evidencing such
stock option.
(b) Stock Appreciation Rights. The Administrator may from time to time
grant to eligible participants Awards of Stock Appreciation Rights ("SAR"). An
SAR entitles the grantee to receive, subject to the provisions of the Plan and
the Grant Agreement, a payment having an aggregate value equal to the product of
(i) the excess of (A) the Fair Market Value on the exercise date of one share of
Common Stock over (B) the base price per share specified in the Grant Agreement,
times (ii) the number of shares specified by the SAR, or portion thereof, which
is exercised. Payment by the Company of the amount receivable upon any exercise
of an SAR may be made by the delivery of Common Stock or cash, or any
combination of Common Stock and cash, as determined in the sole discretion of
the Administrator. If upon settlement of the exercise of an SAR a grantee is to
receive a portion of such payment in shares of Common Stock, the number of
shares shall be determined by dividing such portion by the Fair Market Value of
a share of Common Stock on the exercise date. No fractional shares shall be used
for such payment and the Administrator shall determine whether cash shall be
given in lieu of such fractional shares or whether such fractional shares shall
be eliminated.
(c) Stock Awards. The Administrator may from time to time grant restricted
or unrestricted stock Awards to eligible participants in such amounts, on such
terms and conditions, and for such consideration, including no consideration or
such minimum consideration as may be required by law, as it shall determine. A
stock Award may be paid in Common Stock, in cash, or in a combination of Common
Stock and cash, as determined in the sole discretion of the Administrator.
(d) Phantom Stock. The Administrator may from time to time grant Awards to
eligible participants denominated in stock-equivalent units ("phantom stock") in
such amounts and on such terms and conditions as it shall determine. Phantom
stock units granted to a participant shall be credited to a bookkeeping reserve
account solely for accounting purposes and shall not require a segregation of
any of the Company's assets. An Award of phantom stock may be settled in Common
Stock, in cash, or in a combination of Common Stock and cash, as determined in
the sole discretion of the Administrator. Except as otherwise provided in the
applicable Grant Agreement, the grantee shall not have the rights of a
stockholder with respect to any shares of Common Stock represented by a phantom
stock unit solely as a result of the grant of a phantom stock unit to the
grantee.
(e) Performance Awards. The Administrator may, in its discretion, grant
performance awards which become payable on account of attainment of one or more
performance goals established by the Administrator. Performance awards may be
paid by the delivery of Common Stock or cash, or any combination of Common Stock
and cash, as determined in the sole discretion of the Administrator. Performance
goals established by the Administrator may be based on the Company's or an
Affiliate's operating income or one or more other business criteria selected by
the Administrator that apply to an individual or group of individuals, a
business unit, or the Company or an Affiliate as a whole, over such performance
period as the Administrator may designate.
<PAGE>
(f) Other Stock-Based Awards. The Administrator may from time to time
grant other stock-based awards to eligible participants in such amounts, on such
terms and conditions, and for such consideration, including no consideration or
such minimum consideration as may be required by law, as it shall determine.
Other stock-based awards may be denominated in cash, in Common Stock or other
securities, in stock-equivalent units, in stock appreciation units, in
securities or debentures convertible into Common Stock, or in any combination of
the foregoing and may be paid in Common Stock or other securities, in cash, or
in a combination of Common Stock or other securities and cash, all as determined
in the sole discretion of the Administrator.
7. Miscellaneous
(a) Withholding of Taxes. Grantees and holders of Awards shall pay to the
Company or its Affiliate, or make provision satisfactory to the Administrator
for payment of, any taxes required to be withheld in respect of Awards under the
Plan no later than the date of the event creating the tax liability. The Company
or its Affiliate may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to the grantee or holder
of an Award. In the event that payment to the Company or its Affiliate of such
tax obligations is made in shares of Common Stock, such shares shall be valued
at Fair Market Value on the applicable date for such purposes.
(b) Loans. The Company or its Affiliate may make or guarantee loans to
grantees to assist grantees in exercising Awards and satisfying any withholding
tax obligations.
(c) Transferability. Except as otherwise determined by the Administrator,
and in any event in the case of an incentive stock option or a stock
appreciation right granted with respect to an incentive stock option, no Award
granted under the Plan shall be transferable by a grantee otherwise than by will
or the laws of descent and distribution. Unless otherwise determined by the
Administrator in accord with the provisions of the immediately preceding
sentence, an Award may be exercised during the lifetime of the grantee, only by
the grantee or, during the period the grantee is under a legal disability, by
the grantee's guardian or legal representative.
(d) Adjustments; Business Combinations. In the event of changes in the
Common Stock of the Company by reason of any stock dividend, spin-off, split-up,
recapitalization, merger, consolidation, business combination or exchange of
shares and the like, the Administrator shall, in its discretion, make
appropriate adjustments to the maximum number and kind of shares reserved for
issuance or with respect to which Awards may be granted under the Plan as
provided in Section 4 of the Plan and to the number, kind and price of shares
covered by outstanding Awards, and shall, in its discretion and without the
consent of holders of Awards, make any other adjustments in outstanding Awards,
including but not limited to reducing the number of shares subject to Awards or
providing or mandating alternative settlement methods such as settlement of the
Awards in cash or in shares of Common Stock or other securities of the Company
or of any other entity, or in any other matters which relate to Awards as the
Administrator shall, in its sole discretion, determine to be necessary or
appropriate.
Notwithstanding anything in the Plan to the contrary and without the
consent of holders of Awards, the Administrator, in its sole discretion, may
make any modifications to any Awards, including but not limited to cancellation,
forfeiture, surrender or other termination of the Awards in whole or in part
regardless of the vested status of the Award, in order to facilitate any
business combination that is authorized by the Board to comply with requirements
for treatment as a pooling of interests transaction for accounting purposes
under generally accepted accounting principles.
<PAGE>
The Administrator is authorized to make, in its discretion and without the
consent of holders of Awards, adjustments in the terms and conditions of, and
the criteria included in, Awards in recognition of unusual or nonrecurring
events affecting the Company, or the financial statements of the Company or any
Affiliate, or of changes in applicable laws, regulations, or accounting
principles, whenever the Administrator determines that such adjustments are
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan.
(e) Substitution of Awards in Mergers and Acquisitions. Awards may be
granted under the Plan from time to time in substitution for Awards held by
employees, officers, consultants or directors of entities who become or are
about to become employees, officers, consultants or directors of the Company or
an Affiliate as the result of a merger or consolidation of the employing entity
with the Company or an Affiliate, or the acquisition by the Company or an
Affiliate of the assets or stock of the employing entity. The terms and
conditions of any substitute Awards so granted may vary from the terms and
conditions set forth herein to the extent that the Administrator deems
appropriate at the time of grant to conform the substitute Awards to the
provisions of the awards for which they are substituted.
(f) Termination, Amendment and Modification of the Plan. The Board may
terminate, amend or modify the Plan or any portion thereof at any time.
(g) Non-Guarantee of Employment or Service. Nothing in the Plan or in any
Grant Agreement thereunder shall confer any right on an individual to continue
in the service of the Company or shall interfere in any way with the right of
the Company to terminate such service at any time with or without cause or
notice.
(h) No Trust or Fund Created. Neither the Plan nor any Award shall create
or be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company and a grantee or any other person. To the
extent that any grantee or other person acquires a right to receive payments
from the Company pursuant to an Award, such right shall be no greater than the
right of any unsecured general creditor of the Company.
(i) Governing Law. The validity, construction and effect of the Plan, of
Grant Agreements entered into pursuant to the Plan, and of any rules,
regulations, determinations or decisions made by the Administrator relating to
the Plan or such Grant Agreements, and the rights of any and all persons having
or claiming to have any interest therein or thereunder, shall be determined
exclusively in accordance with applicable federal laws and the laws of the State
of Delaware, without regard to its conflict of laws principles.
(j) Effective Date; Termination Date. The Plan is effective as of the date
on which the Plan is adopted by the Board, subject to approval of the
stockholders within twelve months before or after such date. No Award shall be
granted under the Plan after the close of business on the day immediately
preceding the tenth anniversary of the effective date of the Plan. Subject to
other applicable provisions of the Plan, all Awards made under the Plan prior to
such termination of the Plan shall remain in effect until such Awards have been
satisfied or terminated in accordance with the Plan and the terms of such
Awards.
Date Approved by the Board: April 18, 1999
-----------------------
Date Approved by the Stockholders: April 18, 1999
----------------
<PAGE>
Exhibit 5.1
[LETTERHEAD OF PIPER MARBURY RUDNICK & WOLFE LLP APPEARS HERE]
Commerce Executive Park III - Suite 610
1850 Centennial Park Drive
Reston, Virginia 20191-1517
www.piperrudnick.com
PHONE (703) 391-7100
FAX (703) 309-5299
November 17, 1999
Audible, Inc.
65 Willowbrook Boulevard
Wayne, New Jersey 07470
Re: Audible, Inc. 1999 Stock Incentive Plan
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Audible, Inc., a Delaware corporation (the
"Corporation"), in connection with the preparation and filing with the
Securities and Exchange Commission of a registration statement on Form S-8 (the
"Registration Statement") registering 9,000,000 shares of Common Stock, par
value $.01 per share, issuable pursuant to the exercise of stock options granted
under the Audible, Inc. 1999 Stock Incentive Plan (the "Plan") (shares
registered under the Plan referred to as the "Plan Shares").
We have examined copies of the Corporation's Amended and Restated
Certificate of Incorporation, Amended and Restated By-Laws, the adjusted Plan,
all resolutions adopted by the Corporation's Board of Directors relating to the
above and other records and documents that we have deemed necessary for the
purpose of this opinion. We have also examined such other documents, papers,
statutes and authorities as we have deemed necessary to form a basis for this
opinion. In our examination, we have assumed the genuineness of all signatures
and the conformity to original documents of all copies submitted to us. As to
various questions of fact material to this opinion, we have relied on statements
and certificates of officers and representatives of the Corporation and others.
Based upon the foregoing, we are of the opinion that the Plan Shares
issuable under the Plan have been duly authorized and will be (when issued, sold
and delivered as authorized) validly issued, fully paid and non-assessable.
The opinion set forth herein is limited to matters governed by the
laws of the State of Delaware and the Federal Laws of the United States of
America, and we express no opinion as to any other laws.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Piper Marbury Rudnick & Wolfe LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Audible, Inc.
We consent to the use of our report dated April 14, 1999, except as to note 15,
which is as of May 26, 1999, on the financial statements of Audible, Inc. as of
December 31, 1998 and 1997, and for each of the years in the three-year period
ended December 31, 1998 and the period November 3, 1995 (date of inception) to
December 31, 1998, which report appears in the Prospectus dated July 15, 1999,
filed pursuant to Rule 424(b)(1) on July 16, 1999, incorporated herein by
reference.
/s/ KPMG LLP
-----------------------------------
Short Hills, New Jersey
November 15, 1999
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Officers and Directors
of Audible, Inc., a Delaware corporation (the "Corporation"), hereby constitute
and appoint Donald R. Katz and Nancy A. Spangler, and each of them, the true
and lawful agents and attorneys-in-fact of the undersigned with full power and
authority in said agents and attorneys-in-fact, and in any one or more of them,
to sign for the undersigned and in their respective names as Officers and as
Directors of the Corporation, a Registration Statement on Form S-8 relating to
the proposed issuance of Common Stock and other securities pursuant to the
Audible, Inc. 1999 Stock Incentive Plan (or any and all amendments, including
post-effective amendments, to such Registration Statement) and file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and with full power of substitution; hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Donald R. Katz Acting President and November 12, 1999
- ------------------------------ Chief Executive Officer
Donald R. Katz Chairman of the Board of Directors
/s/ Timothy Mott Director November 11, 1999
- ------------------------------
Timothy Mott
- ------------------------------ Director
R. Bradford Burnham
/s/ Thomas P. Hirschfeld Director November 12, 1999
- ------------------------------
Thomas P. Hirschfeld
- ------------------------------
W. Bingham Gordon Director
/s/ Winthrop Knowlton
- ------------------------------
Winthrop Knowlton Director November 13, 1999
- -------------------------------
Richard Brass
</TABLE>
