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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 23, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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Gaiam, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Colorado 84-111-35-27
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
360 Interlocken Blvd, Suite 300
Broomfield, Colorado 80021
(Address of Principal Executive Offices) (Zip Code)
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Gaiam, Inc. 1999 Long-Term Incentive Plan
Gaiam, Inc. 1999 Employee Stock Purchase Plan
(Full Title of Plans)
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Jirka Rysavy
Chief Executive Officer
Gaiam, Inc.
360 Interlocken Blvd, Suite 300
Broomfield, Colorado 80021
(303) 464-3600
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Price Aggregate Offering Registration
be Registered Registered(1) Per Share(2)(3) Price(2) Fee(3)
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Class A
Common Stock 2,100,000 $16.25 $34,125,000 $9,009.00
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(1) Pursuant to Rule 416, additional shares of the registrant's Class A common
stock, par value $0.0001 per share (the 'Common Stock') issuable pursuant
to the exercise of awards granted or to be granted under the plan in order
to prevent dilution resulting from any future stock split, stock dividend
or similar transaction are also being registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h). Accordingly, the registration
fee is based on 2,100,000 shares of Common Stock reserved for issuance
under the plans, at a price per share of $16.25, which is the average of
the highest and lowest selling price per share of Common Stock on the
Nasdaq National Market on May 22, 2000.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be
sent or given to participating employees as specified in Rule 428(b)(1) of the
Securities Act of 1933, as amended (the 'Securities Act'). Such documents are
not being filed with or included in this Registration Statement (by
incorporation or otherwise) in accordance with the rules and regulations of the
Securities and Exchange Commission (the 'Commission'). These documents and the
documents incorporated by reference into this Registration Statement pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the registrant with the Commission
and are incorporated by reference in this Registration Statement:
(a) the registrant's Annual Report on Form 10-K filed with the
Commission for the fiscal year ended December 31, 1999;
(b) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the 'Exchange Act'),
since December 31, 1999;
(c) The description of the registrant's Class A Common Stock
contained in the registrant's Registration Statement on Form 8-A
filed on October 1, 1999.
All documents subsequently filed by the registrant pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act of 1934, as amended (the 'Exchange
Act'), prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all of the shares of Class A Common Stock offered
have been sold or which deregisters all such shares then 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. Any statement
contained in a document incorporated or deemed incorporated by reference herein
shall be deemed to be modified or superceded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supercedes such statement. Any such statement so
modified or superceded shall not be deemed, except as so modified or superceded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Colorado law provides for indemnification of directors, officers and other
employees in certain circumstances (C.R.S. Section 7-108-102 (1994)) and for the
elimination or limitation of the personal liability for monetary damages of
directors under certain circumstances (C.R.S. Section 7-108-402 (1994)). The
Amended and Restated Articles of Incorporation of Gaiam, Inc. eliminates the
personal liability for monetary damages of directors under certain circumstances
and provides indemnification to directors and officers of Gaiam to the fullest
extent permitted by the Colorado Business Corporation Act. Among other things,
these provisions provide indemnification for officers and directors against
liabilities for judgments in and settlements of lawsuits and other proceedings
and for the advance and payment of fees and expenses reasonably incurred by the
director or officer in defense of any such lawsuit or proceeding. Gaiam has
obtained directors and officers insurance providing insurance indemnifying
certain of Gaiam's directors, officers and employees for certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index that immediately precedes
the exhibits filed with this Registration Statement.
Item 9. Undertakings.
(a) 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 this 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; and
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in the
Registration Statement; Provided, however, that paragraphs (i)
and (ii) shall 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 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.
(b) 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
this 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.
(c) 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 of 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all 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 Broomfield, State of Colorado, on May 12, 2000.
GAIAM, INC.
By: /s/ Jirka Rysavy
Jirka Rysavy
Chief Executive Officer
POWER OF ATTORNEY
KNOW BY ALL MEN THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Jirka Rysavy and Lynn Powers, and each of them, his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, including, without limitation, any
registration statement filed pursuant to Rule 462 under the Securities Act of
1933, as amended, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents or any of them or their or his substitute or
substitutes, may lawfully 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 by the following persons in the capacities and on the
dates indicated opposite their names.
Signature Title Date
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/s/ Jirka Rysavy Jirka Rysavy , Chairman of the Board May 12, 2000
and Chief Executive Officer
/s/ Lynn Powers Lynn Powers, President, Chief Operating May 15, 2000
Officer and director
/s/ Barnet Feinblum Barnet Feinblum, director May 17, 2000
/s/ Barbara Mowrey Barbara Mowrey, director May 18, 2000
/s/ Paul Ray Paul Ray, director May 18, 2000
/s/ Janet Mathews Janet Mathews, Controller and May 12, 2000
principal financial officer
EXHIBIT INDEX
Exhibit
No. Description
4.1 Amended and Restated Articles of Incorporation of Gaiam, Inc.
incorporated by reference to Exhibit 3.1 to the Registrant's
Registration on Form S-1 (Registration No. 333-83283))
4.2 By-laws of Gaiam, Inc. (incorporated by reference to Exhibit 3.2 to
the Registrant's Registration Statement on Form S-1 (Registration No.
333-83283))
4.3 Form of Gaiam, Inc. Stock Certificate (incorporated by reference to
Exhibit 4.1 to the Registrant's Registration Statement on Form S-1
(Registration No. 333-83283))
4.4 Gaiam, Inc. 1999 Long-Term Incentive Plan (incorporated by reference
to Exhibit 10.1 to the Registrant's Registration Statement on Form S-1
(Registration No. 333-83283))
5.1* Opinion of Bartlit Beck Herman Palenchar & Scott
23.1* Consent of Ernst & Young
23.2* Consent of Bartlit Beck Herman Palenchar & Scott (included in Exhibit 5.1)
24.1* Power of Attorney, included on signature page
* Filed herewith.
EXHIBIT 5.1
Bartlit Beck Herman Palenchar & Scott
511 Sixteenth Street, Suite 700
Denver, Colorado 80202
May __, 2000
Gaiam, Inc.
360 Interlocken Blvd., Suite 300
Broomfield, Colorado 80021
Re: Registration Statement on Form S-8 Relating to 2,100,000 Shares of Class A
Common Stock of Gaiam, Inc. Available for Issuance under the Gaiam, Inc.
1999 Employee Stock Purchase Plan and the Gaiam, Inc. 1999 Long-Term
Incentive Plan
Ladies and Gentlemen:
We have acted as counsel to Gaiam, Inc., a Colorado corporation (the
'Company'), in connection with the preparation of the Company's Registration
Statement on Form S-8 filed with the Securities and Exchange Commission (the
'Registration Statement') covering the registration of up to 2,100,000 shares of
the Company's Class A common stock, $0.0001 par value per share (the "Shares"),
including 500,000 Shares issuable pursuant to the Company's 1999 Employee Stock
Purchase Plan (the 'Stock Purchase Plan') and 1,600,000 Shares issuable pursuant
to the Companys 1999 Long-Term Incentive Plan (the 'Long-Term Incentive Plan').
In connection with this opinion, we have examined and relied upon the
Registration Statement and the related prospectuses, the Stock Purchase Plan,
the Long-Term Incentive Plan, the Company's Articles of Incorporation and Bylaws
and the originals or copies certified to our satisfaction of such records,
documents, certificates, memoranda and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below. We
have assumed the genuineness and authenticity of all documents submitted to us
as originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
Based upon the foregoing and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that,
assuming that the Registration Statement shall have become effective pursuant to
the provisions of the Securities Act of 1933, as amended, the Shares, when
issued and sold in accordance with the Stock Purchase Plan or the Long-Term
Incentive Plan, as applicable, the Registration Statement and the applicable
related prospectuses, will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Gaiam, Inc. 1999 Long-Term Incentive Plan and the
Gaiam, Inc. 1999 Employee Stock Purchase Plan of our report dated March 3, 2000,
with respect to the consolidated financial statements and schedule of Gaiam,
Inc. included in its Annual Report (Form 10-K) for the year ended December 31,
1999, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Ernst & Young LLP
Denver, Colorado
May 22, 2000
