<PAGE>
As filed with the Securities and Exchange Commission on June 30, 1999
Registration 333-76985
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
AUDIBLE, INC.
(Exact name of registrant as specified in its charter)
Delaware 7375 22-3407945
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification Number)
incorporation or Classification Code
organization) Number)
----------------
Andrew J. Huffman
President and Chief Executive Officer
Audible, Inc.
65 Willowbrook Boulevard
Wayne, N.J. 07470
(973) 890-4070
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copies to:
Edwin M. Martin, Jr., Esquire Brian D. Goldstein, Esquire
Nancy A. Spangler, Esquire Testa, Hurwitz & Thibeault, LLP
Piper & Marbury L.L.P. 125 High Street
1200 19th Street, N.W. Boston, MA 02110
Washington, D.C. 20036 (617) 248-7000
(202) 861-3900
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
- ---------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------
<CAPTION>
Proposed
Proposed Maximum
Title of Each Class Amount Maximum Aggregate Amount of
of Securities To Be To Be Offering Price Offering Registration
Registered Registered Per Unit Price(1) Fee(2)
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock,
par value $.01......... 4,600,000 Shares $10.00 $46,000,000 $0
- ---------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(a) under the Securities Act.
(2) A registration fee of $12,788 was paid at the time of the initial filing
of this registration statement based on the estimated aggregate offering
price.
----------------
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
13. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses payable by us in
connection with the sale and distribution of the securities offered hereby,
other than underwriting discounts and commissions. All of the amounts shown are
estimated except the Securities and Exchange Commission registration fee, the
National Association Securities Dealers, Inc. filing fee and the Nasdaq
National Market listing fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.............. $ 12,788
National Association of Securities Dealers, Inc. filing fee...... 5,100
Nasdaq National Market listing fee............................... 95,000
Transfer agent's and registrar's fees............................ 10,000
*Printing expenses................................................ 250,000
*Legal fees and expenses.......................................... 275,000
*Accounting fees and expenses..................................... 250,000
Blue Sky filing fees and expenses................................ 10,000
*Miscellaneous expenses........................................... 92,112
----------
Total........................................................... $1,000,000
==========
</TABLE>
- --------
* estimated.
14. Indemnification of Officers and Directors
Section 145 of the Delaware General Corporation Law ("Section 145") permits
indemnification of directors, officers, agents and controlling persons of a
corporation under certain conditions and subject to certain limitations. Our
bylaws include provisions to require us to indemnify our directors and officers
to the fullest extent permitted by Section 145, including circumstances in
which indemnification is otherwise discretionary. Section 145 also empowers us
to purchase and maintain insurance that protects our officers, directors,
employees and agents against any liabilities incurred in connection with their
service in such positions.
At present, there is no pending litigation or proceeding involving any of
our directors or officers as to which indemnification is being sought nor are
we aware of any threatened litigation that may result in claims for
indemnification by any officer or director.
The form of Underwriting Agreement filed as Exhibit 1.1 to this Registration
Statement provides for indemnification of our directors and officers by the
Underwriters, for certain liabilities arising under the Securities Act.
15. Recent Sales of Unregistered Securities
During the last three years, we have issued unregistered securities in the
transactions described below. These securities were offered and sold by us in
reliance upon the exemptions provided for in Section 4(2) of the Securities
Act, relating to sales not involving any public offering, Rule 506 of the
Securities Act relating to sales to accredited investors and Rule 701 of the
Securities Act relating to a compensatory benefit plan. The sales were made
without the use of an underwriter and the certificates representing the
securities sold contain a restrictive legend that prohibits transfer without
registration or an applicable exemption.
(1) In July 1996, we issued 2,000,000 shares of Series B preferred stock to a
group of accredited investors at a purchase price of $1.50 per share for an
aggregate of $3,000,000.
(2) In November 1996, we issued an additional 50,000 shares of Series B
preferred stock to two accredited investors at a purchase price of $1.50
per share for an aggregate of $75,000.
II-1
<PAGE>
(3) In November 1996, we issued warrants to purchase an aggregate of 46,082
shares of Series B preferred stock in connection with loans made to us.
(4) In March 1997, we issued 2,250,000 shares of Series C preferred stock to a
group of accredited investors at a purchase price of $4.00 per share for an
aggregate of $9,000,000.
(5) In March 1997, we issued warrants to purchase 674,999 shares of common
stock to holders of Series C preferred stock in connection with the Series
C preferred stock financing.
(6) In July 1997, we issued a warrant to purchase 12,188 shares of Series C
preferred stock in connection with a loan made to us.
(7) In February 1998, we issued 1,350,000 shares of Series D preferred stock to
a group of accredited investors at a purchase price of $4.00 per share for
an aggregate of $5,400,000.
(8) In April 1998, we issued a warrant to purchase 5,000 shares of Series D
preferred stock in connection with a loan made to us.
(9) In December 1998, we issued an additional 2,500,000 shares of Series D
preferred stock to a group of accredited investors at a purchase price of
$4.00 per share for an aggregate of $10,000,000.
(10) In February 1999, we issued an additional 250,000 shares of Series D
preferred stock to an accredited investor at a purchase price of $4.00 per
share for an aggregate of $1,000,000.
(11) In April 1999, we issued a warrant to purchase 100,000 shares of common
stock to an accredited investor.
(12) From December 1995 through March 1999, we sold an aggregate of 9,244,734
shares of common stock to employees and consultants at purchase prices
ranging from $.047 to $2.667 per share, for an aggregate of $1,541,384 as
follows:
<TABLE>
<CAPTION>
Number of Price Aggregate
Dates of Sale Shares Per Share Purchase Price
------------- --------- --------- --------------
<S> <C> <C> <C>
December 1995................................ 2,250,000 $0.047 $105,000
June 1996.................................... 112,500 0.100 11,250
June 1996.................................... 7,500 0.057 425
July 1996.................................... 1,425,000 0.057 80,750
July 1996.................................... 67,500 0.113 7,650
July 1996.................................... 48,750 0.667 32,500
August 1996.................................. 22,500 0.667 15,000
September 1996............................... 112,500 0.100 11,250
December 1996................................ 922,500 0.100 92,250
January 1997................................. 37,500 0.100 3,750
February 1997................................ 99,000 0.100 9,900
March 1997................................... 15,000 2.000 30,000
April 1997................................... 18,000 0.667 12,000
May 1997..................................... 83,250 0.100 8,325
June 1997.................................... 323,250 0.267 86,200
July 1997.................................... 553,500 0.267 147,600
September 1997............................... 3,750 0.100 375
October 1997................................. 4,500 2.667 12,000
November 1997................................ 409,125 0.267 109,100
November 1997................................ 17,310 0.333 5,770
December 1997................................ 1,125 0.333 375
December 1997................................ 4,050 0.667 2,700
December 1997................................ 9,249 2.667 24,664
January 1998................................. 7,500 2.000 15,000
January 1998................................. 18,750 0.267 5,000
February 1998................................ 3,750 0.333 1,250
February 1998................................ 1,500,000 0.267 400,000
May 1998..................................... 279,000 0.267 74,400
June 1998.................................... 457,500 0.267 122,000
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Number of Price Aggregate
Dates of Sale Shares Per Share Purchase Price
------------- --------- --------- --------------
<S> <C> <C> <C>
July 1998.................................... 82,500 0.267 22,000
September 1998............................... 80,250 0.267 21,400
October 1998................................. 38,625 0.267 10,300
March 1999................................... 229,500 0.267 61,200
--------- ----------
Total........................................ 9,244,734 $1,541,384
</TABLE>
(13) In April 1999, we issued options to purchase 3,000 shares of our common
stock for $2.00 per share to one of our employees.
(14) Effective May 26, 1999, we declared a stock dividend of .5 shares for each
outstanding share of common stock.
(15) In June 1999, we issued to an accredited investor in connection with a
business arrangement a warrant to purchase 150,000 shares of common stock
at an exercise price of $0.01 per share and a warrant to purchase 750,000
shares of common stock at an exercise price of $8.00 per share.
(16) In June 1999, we issued options to purchase an aggregate of 900,500 shares
of our common stock for $8.00 per share to employees and consultants.
16. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit No. Description
1.1 Form of Underwriting Agreement
3.1 Restated Certificate of Incorporation of Audible, dated March 31,
1997
3.1.1 Certificate of Amendment of Certificate of Incorporation, dated
July 22, 1997
3.1.2 Certificate of Amendment of Certificate of Incorporation, dated
February 25, 1998
3.1.3 Certificate of Amendment of Certificate of Incorporation, dated
December 18, 1998
3.1.3.1* Certificate of Amendment of Certificate of Incorporation, dated
April 23, 1999
3.1.4 Certificate of Amendment of Certificate of Incorporation, dated
June 16, 1999
3.2 Form of Amended and Restated Certificate of Incorporation of
Audible
3.3 Bylaws of Audible
3.3.1 Amendment No. 1 to Audible, Inc. Bylaws, dated March 17, 1998
3.4 Form of Amended and Restated Bylaws of Audible
4.1 Specimen stock certificate for shares of common stock of Audible
5.1 Opinion of Piper & Marbury L.L.P.
10.1+ License Agreement dated November 4, 1998, by and between Microsoft
Corporation and Audible
10.2+ Digital Rights Management Agreement dated November 4, 1998,
between Microsoft Corporation and Audible
10.3+ Development Agreement dated November 12, 1998, by and between
RealNetworks, Inc. and Audible
10.4 RealMedia Architecture Partner Program Internet Agreement dated
November 12, 1998, between RealNetworks, Inc. and Audible
10.5 Master Lease Agreement dated November 19, 1996, by and between
Comdisco, Inc. as lessor, and Audible as lessee
10.5.1 Addendum to Master Lease Agreement dated November 20, 1996, by and
between Comdisco, Inc., as lessor, and Audible, as lessee
(relating to Exhibit 10.5)
II-3
<PAGE>
10.6 Warrant Agreement to purchase 30,573 shares of Series B preferred
stock at a price of $2.68 per share, dated November 19, 1996, and
re-issued as of August 17, 1998, by Audible to Comdisco, Inc.
10.7 Warrant Agreement to purchase 12,188 shares of Series C preferred
stock at a price of $4.00 per share, dated July 24, 1997, issued
by Audible to Comdisco, Inc.
10.8 Loan and Security Agreement dated April 6, 1998, by and between
Silicon Valley Bank, as lender, and Audible, as borrower, for a
revolving line of credit of up to $1,000,000
10.9 Warrant to Purchase Stock issued April 6, 1998, by Audible to
Silicon Valley Bank,
10.10 Security and Loan Agreement dated November 20, 1996, between
Audible, as borrower, and Imperial Bank, as lender, for up to
$500,000
10.11 Warrant Agreement to purchase 12,500 shares of Series B preferred
stock at a price of $3.00 per share, dated November 20, 1996,
issued by Audible to Imperial Bank
10.12 Promissory Note dated March 28, 1997, from Donald Katz in favor of
Audible, in the principal amount of $100,000
10.12.1 Allonge to Note dated April 21, 1999 between Donald Katz and
Audible (relating to Exhibit 10.12.1)
10.13 Security Agreement dated March 28, 1997, by and between Donald
Katz and Audible
10.14 Amended and Restated Registration Rights Agreement dated February
26, 1998, by and among Audible and certain stockholders named
therein
10.14.1 Amendment No. 1 to Amended and Restated Registration Rights
Agreement dated December 18, 1998 (relating to Exhibit 10.14)
10.14.2 Amendment No. 2 to Amended and Restated Registration Rights
Agreement dated June 17, 1999 (relating to Exhibit 10.14)
10.15 1999 Stock Incentive Plan
10.16 Form of Common Stock Warrants issued March 31, 1997 by Audible to
various investors in connection with the Series C preferred stock
financing
10.17 Form of Stock Restriction Agreement by and between Audible and the
Named Executive Officers made in connection with various purchases
and sales of shares of restricted common stock
10.18 Form of Promissory Note made by the Named Executive Officers in
favor of Audible in connection with various purchases and sales of
shares of restricted common stock
10.19 Office Lease dated June 20, 1997, by and between Audible, as
tenant, and Passaic Investment LLC, Sixty-Five Willowbrook
Investment LLC and Wayne Investment LLC, as tenants-in-common, as
landlord
10.20 Sublease Agreement dated July 19, 1996, by and between Audible, as
sublessee, and Painewebber Incorporated, as sublessor
10.21+ Agreement dated April 3, 1999 by and between Audible and Diamond
Multimedia Systems, Inc.
10.22 Common Stock Purchase Warrant, issued April 22, 1999, to Microsoft
Corporation
10.23 Employment Offer Letter from Audible to Guy Story dated June 10,
1996
10.24 Employment Offer Letter from Audible to Matthew Fine dated March
31, 1997
10.25 Employment Offer Letter from Audible to Brian Fielding dated April
25, 1997
10.26 Employment Offer Letter from Audible to Travis Millman dated
September 29, 1997
10.27 Employment Offer Letter from Audible to Foy Sperring dated April
23, 1998
10.28 Employment Offer Letter from Audible to Andrew Huffman dated
February 12, 1998
10.29 Employment Offer Letter from Audible to Andrew Kaplan dated May
25, 1999
10.30 Common Stock Purchase Warrant, W-1, issued June 17, 1999, to Robin
Williams
II-4
<PAGE>
Common Stock Purchase Warrant, W-2, issued June 17, 1999, to Robin
10.31 Williams
Letter Agreement dated June 17 1999, between Robin Williams and
10.32 Audible
11.1 Statement of computation of loss per share
23.1 Consent of KPMG LLP
23.2 Consent of Piper & Marbury L.L.P. (included as part of Exhibit 5.1
hereto)
24.1 Power of Attorney (included in signature pages)
27 Financial Data Schedule
- --------
+ Portions of this Exhibit were omitted and have been filed separately with
the Secretary of the Commission pursuant to the Registrant's Application
Requesting Confidential Treatment under Rule 406 of the Act.
* Filed herewith.
(b) Financial Statement Schedules:
Schedules have been omitted because the information required to be shown in
the schedules is not applicable or is included elsewhere in our financial
statements or the notes thereto.
17. Undertakings
The undersigned Registrant hereby undertakes to provide to the underwriter
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
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 provisions of its Charter or Bylaws or the Delaware
General Corporation Law 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted form the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company has duly
caused this Amendment to Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Wayne, New Jersey,
on the 30th day of June, 1999.
AUDIBLE, INC.
/s/ Andrew J. Huffman
By: _________________________________
Andrew J. Huffman
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment to Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<C> <S> <C>
/s/ Andrew J. Huffman President, Chief Executive June 30, 1999
_________________________________ Officer and Director
Andrew J. Huffman (Principal Executive
Officer)
/s/ Andrew P. Kaplan Vice President, Finance and June 30, 1999
_________________________________ Administration and Chief
Andrew P. Kaplan Financial Officer
(Principal Financial
Officer)
* Chairman of the Board of June 30, 1999
_________________________________ Directors
Donald R. Katz
* Director June 30, 1999
_________________________________
Timothy Mott
* Director June 30, 1999
_________________________________
R. Bradford Burnham
* Director June 30, 1999
_________________________________
Thomas Hirschfeld
* Director June 30, 1999
_________________________________
W. Bingham Gordon
* Director June 30, 1999
_________________________________
Winthrop Knowlton
* Director June 30, 1999
_________________________________
Richard Brass
</TABLE>
*By: /s/ Nancy A. Spangler
-------------------------
Nancy A. Spangler
Attorney-In-Fact
II-6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
1.1 Form of Underwriting Agreement
3.1 Restated Certificate of Incorporation of Audible, dated March 31,
1997
3.1.1 Certificate of Amendment of Certificate of Incorporation, dated
July 22, 1997
3.1.2 Certificate of Amendment of Certificate of Incorporation, dated
February 25, 1998
3.1.3 Certificate of Amendment of Certificate of Incorporation, dated
December 18, 1998
3.1.3.1* Certificate of Amendment of Certificate of Incorporation, dated
April 23, 1999
3.1.4 Certificate of Amendment of Certificate of Incorporation, dated
June 16, 1999
3.2 Form of Amended and Restated Certificate of Incorporation of
Audible
3.3 Bylaws of Audible
3.3.1 Amendment No. 1 to Audible, Inc. Bylaws, dated March 17, 1998
3.4 Form of Amended and Restated Bylaws of Audible
4.1 Specimen stock certificate for shares of common stock of Audible
5.1 Opinion of Piper & Marbury L.L.P.
10.1+ License Agreement dated November 4, 1998, by and between Microsoft
Corporation and Audible
10.2+ Digital Rights Management Agreement dated November 4, 1998,
between Microsoft Corporation and Audible
10.3+ Development Agreement dated November 12, 1998, by and between
RealNetworks, Inc. and Audible
10.4 RealMedia Architecture Partner Program Internet Agreement dated
November 12, 1998, between RealNetworks, Inc. and Audible
10.5 Master Lease Agreement dated November 19, 1996, by and between
Comdisco, Inc. as lessor, and Audible as lessee
10.5.1 Addendum to Master Lease Agreement dated November 20, 1996, by and
between Comdisco, Inc., as lessor, and Audible, as lessee
(relating to Exhibit 10.5)
10.6 Warrant Agreement to purchase 30,573 shares of Series B preferred
stock at a price of $2.68 per share, dated November 19, 1996, and
re-issued as of August 17, 1998, by Audible to Comdisco, Inc.
10.7 Warrant Agreement to purchase 12,188 shares of Series C preferred
stock at a price of $4.00 per share, dated July 24, 1997, issued
by Audible to Comdisco, Inc.
10.8 Loan and Security Agreement dated April 6, 1998, by and between
Silicon Valley Bank, as lender, and Audible, as borrower, for a
revolving line of credit of up to $1,000,000
10.9 Warrant to Purchase Stock issued April 6, 1998, by Audible to
Silicon Valley Bank, entitling Silicon Valley Bank to purchase
5,000 shares of common stock at a price of $4.00 per share
10.10 Security and Loan Agreement dated November 20, 1996, between
Audible, as borrower, and Imperial Bank, as lender, for up to
$500,000
10.11 Warrant Agreement to purchase 12,500 shares of Series B preferred
stock at a price of $3.00 per share, dated November 20, 1996,
issued by Audible to Imperial Bank
10.12 Promissory Note dated March 28, 1997, from Donald Katz in favor of
Audible, in the principal amount of $100,000
10.12.1 Allonge to Note dated April 21, 1999 between Donald Katz and
Audible (relating to Exhibit 10.12.1)
<PAGE>
<TABLE>
<S> <C>
10.13 Security Agreement dated March 28, 1997, by and between Donald
Katz and Audible
10.14 Amended and Restated Registration Rights Agreement dated February
26, 1998, by and among Audible and certain stockholders named
therein
10.14.1 Amendment No. 1 to Amended and Restated Registration Rights
Agreement dated December 18, 1998 (relating to Exhibit 10.14)
10.14.2 Amendment No. 2 to Amended and Restated Registration Rights
Agreement dated June 17, 1999 (relating to Exhibit 10.14)
10.15 1999 Stock Incentive Plan
10.16 Form of Common Stock Warrants issued March 31, 1997 by Audible to
various investors in connection with the Series C preferred stock
financing
10.17 Form of Stock Restriction Agreement by and between Audible and the
Named Executive Officers made in connection with various purchases
and sales of shares of restricted common stock
10.18 Form of Promissory Note made by the Named Executive Officers in
favor of Audible in connection with various purchases and sales of
shares of restricted common stock
10.19 Office Lease dated June 20, 1997, by and between Audible, as
tenant, and Passaic Investment LLC, Sixty-Five Willowbrook
Investment LLC and Wayne Investment LLC, as tenants-in-common, as
landlord
10.20 Sublease Agreement dated July 19, 1996, by and between Audible, as
sublessee, and Painewebber Incorporated, as sublessor
10.21+ Agreement dated April 13, 1999 by and between Audible and Diamond
Multimedia Systems, Inc.
10.22 Common Stock Purchase Warrant, issued April 22, 1999, to Microsoft
Corporation
10.23 Employment Offer Letter from Audible to Guy Story dated June 10,
1996
10.24 Employment Offer Letter from Audible to Matthew Fine dated March
31, 1997
10.25 Employment Offer Letter from Audible to Brian Fielding dated April
25, 1997
10.26 Employment Offer Letter from Audible to Travis Millman dated
September 29, 1997
10.27 Employment Offer Letter from Audible to Foy Sperring dated April
23, 1998
10.28 Employment Offer Letter from Audible to Andrew Huffman dated
February 12, 1998
10.29 Employment Offer Letter from Audible to Andrew Kaplan dated May
25, 1999
10.30 Common Stock Purchase Warrant, W-1, issued June 17, 1999, to Robin
Williams
10.31 Common Stock Purchase Warrant, W-2, issued June 17, 1999, to Robin
Williams
10.32 Letter Agreement dated June 17, 1999, between Robin Williams and
Audible
11.1 Statement of computation of loss per share
23.1 Consent of KPMG LLP
23.2 Consent of Piper & Marbury L.L.P. (included as part of Exhibit 5.1
hereto)
24.1
Power of Attorney (included in signature pages)
27 Financial Data Schedule
- --------
+ Portions of this Exhibit were omitted and have been filed separately with
the Secretary of the Commission pursuant to the Registrant's Application
Requesting Confidential Treatment under Rule 406 of the Act.
* Filed herewith.
</TABLE>
<PAGE>
EXHIBIT 3.1.3.1
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF AUDIBLE, INC.
AUDIBLE, INC., a corporation organized and existing under the laws of the
State of Delaware (the "Corporation"), hereby certifies as follows:
FIRST: In a meeting duly called on April 18, 1999, the Board of
Directors of the Corporation adopted resolutions pursuant to Section 242 of the
General Corporation Law of the State of Delaware, setting forth amendments to
the Certificate of Incorporation of the Corporation (the "Certificate") and
declaring said amendments to be advisable. The stockholders of the Corporation
duly approved the proposed amendments in accordance with Section 242 of the
General Corporation Law of the State of Delaware by written consent in lieu of a
meeting, dated April 22, 1999, pursuant to and in accordance with Section 228 of
the General Corporation Law of the State of Delaware. The resolutions setting
forth the amendments are as follows:
RESOLVED: That the first paragraph of Article FOURTH of the
--------
Certificate of Incorporation be and hereby is deleted in its entirety and
replaced as follows:
"FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is (i) 50,000,000 shares of common
stock, $.01 par value per share (the "Common Stock") and (ii) 19,843,000 shares
of preferred stock, $.01 par value per share (the "Preferred Stock"), of which
(i) 534,000 shares are designated Series A Convertible Preferred Stock, $.01 par
value per share (the "Series A Stock"), (ii) 534,000 shares are designated
Series A-1 Convertible Preferred Stock, par value $.01 per share (the "Series A-
1 Preferred Stock"); (iii) 2,100,000 shares are designated Series B Preferred
Stock, $.01 par value per share (the "Series B Preferred Stock"); (iv) 2,300,000
shares are designated Series C Preferred Stock, $.01 par value per share (the
"Series C Preferred Stock"), and (v) 4,375,000 shares are designated Series D
Preferred Stock, par value $.01 par value per share (the "Series D Preferred
Stock"). As used herein, the term "Series A Preferred Stock" means the Series A
Stock and the Series A-1 Preferred Stock share-for-share alike and without
distinction, as except as the context otherwise requires."
RESOLVED: The following paragraph be inserted as the new first
--------
paragraph under Article FOURTH (B) of the Certificate of Incorporation:
"B. Preferred Stock.
---------------
The Board of Directors expressly is authorized, subject to limitations
prescribed by the Delaware General Corporation Law and the provisions of the
Certificate of
<PAGE>
Incorporation of the Corporation, to provide, by resolution and by filing a
certificate pursuant to the Delaware General Corporation Law, for the issuance
from time to time of the shares of Preferred Stock in one or more series, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and other rights of the
shares of each such series and to fix the qualifications, limitations and
restrictions thereon, including, but without limiting the generality of the
foregoing, the following:
(1) the number of shares constituting that series and the distinctive
designation of that series;
(2) the dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that series;
(3) whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(4) whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision for adjustment
of the conversion rate in such events as the Board of Directors shall determine;
(5) whether or not the shares of that series shall be redeemable, and,
if so, the terms and conditions of such redemption, including the dates upon or
after which they shall be redeemable, and the amount per share payable in case
of redemption, which amount may vary under different conditions and at different
redemption rates;
(6) whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
(7) the rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, and
the relative rights of priority, if any, of payment of shares of that series;
and
(8) any other relative powers, preferences, and rights of that series,
and qualifications, limitations or restrictions on that series."
SECOND: This amendment to Certificate of Incorporation shall be effective
as of the date set forth below.
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<PAGE>
IN WITNESS WHEREOF, Audible, Inc. has caused this Certificate to be signed
by Andrew J. Huffman, its President and Chief Executive Officer this 22nd day of
April, 1999.
AUDIBLE, INC.
By: /s/ Andrew J. Huffman
-------------------------------------
Andrew J. Huffman
President and Chief Executive Officer
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