<PAGE>
As filed with the Securities and Exchange Commission on July 9, 1999
Registration No. 333-72685
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
POST-EFFECTIVE AMENDMENT
NO.1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MUSICMAKER.COM, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
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<S> <C> <C>
Delaware 5961 54-1811721
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Organization) Classification Code Number) Identification No.)
- -----------------------------------------------------------------------------------------------
</TABLE>
1831 Wiehle Avenue
Suite 128
Reston, Virginia 20190
(703) 904-4110
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
Robert P. Bernardi
Co-Chief Executive Officer
musicmaker.com, Inc.
1831 Wiehle Avenue
Suite 128
Reston, Virginia 20190
(703) 904-4110
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
Copies to:
- --------------------------------------------------------------------------------
John L. Sullivan, III Andrew J. Sherman
Andrea S. Kaufman David J. Kaufman
Erik J. Lichter Alan J. Schaeffer
Venable, Baetjer and Howard, LLP Katten Muchin & Zavis
2010 Corporate Ridge 1025 Thomas Jefferson St., N.W.
Suite 400 Suite 700
McLean, VA 22102 Washington, DC 20007
(703) 760-1600 (202) 625-3790
- --------------------------------------------------------------------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this registration statement is 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, 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, 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, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [X]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<PAGE>
EXPLANATORY NOTE
This post-effective Amendment No. 1 (the "Amendment") to the
Registration Statement on Form S-1 (File No. 333-72685) of musicmaker.com, Inc.
(the "Registration Statement") is being filed pursuant to Rule 462 (d) under the
Securities Act of 1933, as amended, for the sole purpose of amending a certain
exhibit previously filed with the Registration Statement and, accordingly, shall
become effective immediately upon filing with the Securities and Exchange
Commission (the "Commission"). The contents of the Registration Statement are
hereby incorporated herein by reference.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSECTUS
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<CAPTION>
Item 16. Exhibits and Financial Statement Schedules.
Page
Exhibit No. Description No.
----------- ----------- ----
<C> <S> <C>
1.1 Form of Underwriting Agreement between musicmaker.com,
Virgin Holdings, Inc. and Ferris, Baker Watts,
Incorporated, Fahnestock & Co. Inc. and C. E. Unterberg,
Towbin as Representatives.#
3.1 Form of Amended and Restated Certificate of
Incorporation.#
3.2 Bylaws.#
4.1 Form of Common Stock Certificate.#
4.2 Form of Warrant Agreement.#
5.1 Revised Opinion of Venable, Baetjer and Howard, LLP regarding
legality.+
10.1 Amended and Restated Employment Agreement between the
Company and Robert P. Bernardi dated December 8, 1997,
amended on February 12, 1999.#
10.2 Amended and Restated Employment Agreement between the
Company and Devarajan S. Puthukarai dated December 8,
1997, amended on February 12, 1999 and on May 19, 1999.#
10.3 Consulting Agreement dated January 23, 1997, between the
Company and Irwin H. Steinberg, amended on January 1,
1998, and amended by letters to the Company dated August
28, 1998 and August 31, 1998.#
10.4 Letter Agreement dated June 12, 1998, between the Company
and The Columbia House Company.#
10.5 The Company's Amended Stock Option Plan.#
10.6 Marketing Agreement dated September 30, 1998, between
Platinum Entertainment, Inc. and the Company.#
10.7 Memorandum of Understanding between the Company and Audio
Book Club, Inc. dated January 18, 1999.#
10.8 Office/Warehouse/Showroom Lease dated January 15, 1998
between the Company and Century Properties Fund XX.#
10.9 Form of Lock-up Agreement.#
10.10.1 Loan and Security Agreement between the Company and
Imperial Bank dated March 12, 1999.#
10.10.2 Standby Letter of Credit and Security Agreement dated
March 9, 1999, and Addendum thereto dated March 5, 1999.#
10.11 Master Equipment Lease dated January 8, 1999 between the
Company and Boston Financial & Equity Corporation.#
10.12 Agreement of Lease between 570 Lexington Company, L.P.
and the Company dated February 26, 1999.#
10.13 License Agreement between the Company and Virgin
Holdings, Inc. dated June 8, 1999.++
10.14 Agreement between the Company and Virgin Holdings, Inc.
dated June 8, 1999.#
10.15 Stockholders' Agreement between the Company, Virgin
Holdings, Inc. and the other Stockholders listed on
Schedule I dated June 8, 1999.#
10.16 Registration Rights Agreement between the Company, Virgin
Holdings, Inc., Rho Management Trust I, The Columbia
House Company and the other Stockholders listed on
Schedules I and II dated June 8, 1999.#
10.17 Co-Branding and Media Purchase Agreement between the
Company and Spinner Networks, Inc. dated March 26, 1999.#
10.18 Note Purchase Agreement between Rho Management Trust I
and the Company dated as of June 23, 1999.#
10.19 Demand Promissory Note in the aggregate principal amount
of $1,000,000 issued by the Company to Rho Management
Trust I dated as of June 23, 1999.#
23.1 Consent of Ernst & Young LLP, independent auditors.#
23.2 Consent of Venable, Baetjer and Howard, LLP (included in
Exhibit 5.1).+
23.3 Consent of Darby & Darby, P.C.#
24 Power of Attorney (Contained on the signature page).#
27 Financial Data Schedule.#
</TABLE>
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+ Filed herewith.
# Previously filed.
++ Confidential treatment received for portions of this document which was
previously filed with the Securities and Exchange Commission.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in Reston, Virginia, on the 9th day of
July 1999.
MUSICMAKER.COM, INC.
By: /s/ Robert P. Bernardi
-----------------------------
Robert P. Bernardi
Chairman and Co-Chief Executive Officer
Pursuant to the requirements of the Securities Act, 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
--------- -------------------- --------------
<S> <C> <C>
/s/ Robert P. Bernardi Chairman and Co-Chief July 9, 1999
----------------------- Executive Officer (Principal
Robert P. Bernardi Executive Officer)
* Director of Finance and July 9, 1999
----------------------- Administration and Chief
Mark A. Fowler Financial Officer (Principal
Financial and Accounting
Officer)
* Vice Chairman and Director July 9, 1999
-----------------------
Irwin H. Steinberg
* Co-Chief Executive Officer, July 9, 1999
----------------------- President, Chief Operating
Devarajan S. Puthukarai Officer and Director
* Director July 9, 1999
-----------------------
Edward J. Mathias
* Director July 9, 1999
-----------------------
Jay A. Samit
* Director July 9, 1999
-----------------------
Jonathan A.B. Smith
* Director July 9, 1999
-----------------------
John A. Skolas
*By: /s/ Robert P. Bernardi
- ------------------------------
Robert P. Bernardi
Attorney-in-fact
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
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<C> <S>
1.1 Form of Underwriting Agreement between musicmaker.com,
Virgin Holdings, Inc. and Ferris, Baker Watts,
Incorporated, Fahnestock & Co. Inc. and C.E. Unterberg,
Towbin as Representatives.#
3.1 Form of Amended and Restated Certificate of
Incorporation.#
3.2 Bylaws.#
4.1 Form of Common Stock Certificate.#
4.2 Form of Warrant Agreement.#
5.1 Revised Opinion of Venable, Baetjer and Howard, LLP regarding
legality.+
10.1 Amended and Restated Employment Agreement between the
Company and Robert P. Bernardi dated December 8, 1997,
amended on February 12, 1999.#
10.2 Amended and Restated Employment Agreement between the
Company and Devarajan S. Puthukarai dated December 8,
1997, amended on February 12, 1999 and on May 19, 1999.#
10.3 Consulting Agreement dated January 23, 1997, between the
Company and Irwin H. Steinberg, amended on January 1,
1998, and amended by letters to the Company dated August
28, 1998 and August 31, 1998.#
10.4 Letter Agreement dated June 12, 1998, between the Company
and The Columbia House Company.#
10.5 The Company's Amended Stock Option Plan.#
10.6 Marketing Agreement dated September 30, 1998, between
Platinum Entertainment, Inc. and the Company.#
10.7 Memorandum of Understanding between the Company and Audio
Book Club, Inc. dated January 18, 1999.#
10.8 Office/Warehouse/Showroom Lease dated January 15, 1998
between the Company and Century Properties Fund XX.#
10.9 Form of Lock-up Agreement.#
10.10.1 Loan and Security Agreement between the Company and
Imperial Bank dated March 12, 1999.#
10.10.2 Standby Letter of Credit and Security Agreement dated
March 9, 1999, and Addendum thereto dated March 5, 1999.#
10.11 Master Equipment Lease dated January 8, 1999 between the
Company and Boston Financial & Equity Corporation.#
10.12 Agreement of Lease between 570 Lexington Company, L.P.
and the Company dated February 26, 1999.#
10.13 License Agreement between the Company and Virgin
Holdings, Inc. dated June 8, 1999.++
10.14 Agreement between the Company and Virgin Holdings, Inc.
dated June 8, 1999.#
10.15 Stockholders' Agreement between the Company, Virgin
Holdings, Inc. and the other Stockholders listed on
Schedule I dated June 8, 1999.#
10.16 Registration Rights Agreement between the Company, Virgin
Holdings, Inc., Rho Management Trust I, The Columbia
House Company and the other Stockholders listed on
Schedules I and II dated June 8, 1999.#
10.17 Co-Branding and Media Purchase Agreement between the
Company and Spinner Networks, Inc. dated March 26, 1999.#
10.18 Note Purchase Agreement between Rho Management Trust I
and the Company dated as of June 23, 1999.#
10.19 Demand Promissory Note in the aggregate principal amount
of $1,000,000 issued by the Company to Rho Management
Trust I dated as of June 23, 1999.#
23.1 Consent of Ernst & Young LLP, independent auditors.#
23.2 Consent of Venable, Baetjer and Howard, LLP (included in
Exhibit 5.1).+
23.3 Consent of Darby & Darby, P.C.#
24 Power of Attorney (Contained on the signature page).#
27 Financial Data Schedule.#
</TABLE>
- --------
+ Filed herewith.
# Previously filed.
++ Confidential treatment received for portions of this document which was
previously filed with the Securities and Exchange Commission.
2
<PAGE>
EXHIBIT 5.1
Venable, Baetjer & Howard, LLP
2010 Corporate Ridge
Suite 400
McLean, VA 22102
July 9, 1999
musicmaker.com, Inc.
1831 Wiehle Avenue
Reston, Virginia 20190
Ladies and Gentlemen:
We have acted as counsel for musicmaker.com, Inc. a Delaware corporation,
(the "Company") in connection with that certain registration statement on Form
S-1 of the Company (No. 333-72685) as may be amended from time to time (the
"Registration Statement"), filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), on July 9, 1999, pertaining to the registration of 8,400,000
shares of common stock, par value $0.01 per share, of the Company (the "Shares")
of which 5,327,803 Shares are to be issued and sold by the Company and 3,072,197
Shares are to be sold by that certain selling stockholder of the Company, Virgin
Holdings, Inc. (the "Selling Stockholder"), as described in the Registration
Statement.
In connection with the opinions set forth herein, we have considered such
questions of law as we have deemed necessary as a basis for the opinions set
forth below, and we have examined or otherwise are familiar with originals or
copies, certified or otherwise identified to our satisfaction, of the following:
(i) the Registration Statement; (ii) the Amended and Restated Certificate of
Incorporation and Bylaws, as amended, of the Company, as currently in effect;
(iii) certain resolutions of the Board of Directors of the Company relating to
the issuance of the Shares to be sold by the Company and the other transactions
contemplated by the Registration Statement; and (iv) such other documents as we
have deemed necessary or appropriate as a basis for such opinions. In our
examination, we have assumed without independent verification the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies and the authenticity of the originals of such
copies. As to any facts
<PAGE>
material to this opinion that we did not independently establish or verify, we
have relied upon statements and representations of officers and other
representatives of the Company and others.
Based upon the foregoing, we are of the opinion that:
1. The Shares to be sold by the Company have been duly authorized for
issuance and that when sold, issued, paid for and delivered in the
manner contemplated by the Registration Statement, the Shares will be
validly issued, fully paid and nonassessable.
2. The Shares to be sold by the Selling Stockholder have been duly
authorized and validly issued and are fully paid and nonassessable.
The law covered by the opinion is limited to the general corporation
law of the State of Delaware (without regard to the principles of conflicts of
laws thereof) and based upon and limited to the laws and regulations in effect
as of the date hereof. We assume no obligation to update the opinions set forth
herein.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to Post-Effective Amendment No. 1 to the Registration Statement and
we consent to the use of our name under the caption "Legal Matters" in the
prospectus forming a part of the Registration Statement.
Very truly yours,
/s/ VENABLE, BAETJER & HOWARD, LLP
