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As filed with the Securities and Exchange Commission on May 31, 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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ARTISTDIRECT, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-4760230
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
5670 WILSHIRE BOULEVARD, SUITE 200
LOS ANGELES, CA 90036
(Address of principal executive offices) (Zip Code)
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1999 EMPLOYEE STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
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JAMES B. CARROLL
CHIEF FINANCIAL OFFICER
ARTISTDIRECT, INC.
5670 WILSHIRE BOULEVARD, SUITE 200
LOS ANGELES, CA 90036
(Name and address of agent for service)
(323) 634-4000
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ------------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
1999 Employee Stock Option Plan 6,500,000 shares $4.07 $26,455,000 $6,984.12
Common Stock, $0.01 par value
1999 Employee Stock Purchase Plan 500,000 shares $4.07 $ 2,035,000 $ 537.24
Common Stock, $0.01 par value
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Aggregate Registration Fee $7,521.36
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Employee Stock Option
Plan or the 1999 Employee Stock Purchase Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the Registrant's receipt of consideration which results in
an increase in the number of the outstanding shares of Registrant's Common
Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling price per share of the Registrant's Common Stock on
May 25, 2000, as reported by the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
ARTISTdirect, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000 filed with the Commission on May 15, 2000;
(b) The Registrant's prospectus filed with the Commission pursuant to Rule
424(b) promulgated under the Securities Act of 1933, as amended (the
"1933 Act") filed with the Commission on March 29, 2000, in connection
with the Registrant's Registration Statement No. 333-87547 on Form
S-1, in which there is set forth the audited financial statements for
the Registrant's fiscal year ended December 31, 1999; and
(c) The Registrant's Registration Statement No. 000-30063 on Form 8-A12G
filed with the Commission on March 22, 2000, pursuant to Section 12(b)
of the Securities Exchange Act of 1934, as amended (the "1934 Act"),
in which there is described the terms, rights and provisions
applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold shall be deemed to be
incorporated by reference into 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 to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, 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
Article VII of the Registrant's Amended & Restated Bylaws provides
that the Registrant may indemnify its officers and Directors to the full extent
permitted by law. Section 145 of the General Corporation Law of the State of
Delaware (the "GCL") provides that a Delaware corporation has the power to
indemnify its officers and directors in certain circumstances.
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, 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 (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and
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amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding provided that such director or officer acted in
good faith and in a manner such director or officer reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, provided that such director or officer had no
reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses actually and reasonably incurred in
connection with the defense or settlement of such action or suit, provided that
such director or officer acted in good faith and in a manner such director or
officer reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action was brought shall determine that
despite the adjudication of liability, but in view of all the circumstances of
the case, such director or officer is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
Section 145 of the GCL further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of
any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith; that indemnification provided for by Section 145
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; and that the corporation shall have power to purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
The Registrant carries directors' and officers' liability insurance
covering its directors and officers.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement No.
000-30063 on Form 8-A12G, together with any exhibits
thereto, which are incorporated herein by reference
pursuant to Item 3(c) to this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1999 Employee Stock Option Plan (As Amended and Restated
Through March 21, 2000).
99.2 1999 Employee Stock Purchase Plan (As Amended and Restated
Through March 21, 2000).
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 1933 Act, (ii) to reflect in the prospectus any facts or
events arising
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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 this Registration Statement; provided,
however, that clauses (1)(i) and (1)(ii) shall not apply if the information
required to be included in a post-effective amendment by those clauses is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any liability
under the 1933 Act each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and (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 Registrant's 1999 Employee Stock Option Plan or
1999 Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into 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 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 or
otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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 1933 Act and
will be governed by the final adjudication of such issue.
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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 Los Angeles, State of California on
this 30th day of May, 2000.
ARTISTDIRECT, INC.
By /s/ MARC P. GEIGER
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Marc P. Geiger
Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of ARTISTdirect, Inc., a
Delaware corporation, do hereby constitute and appoint Marc P. Geiger and James
B. Carroll, and each of them, the lawful attorneys-in-fact and agents with full
power and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them, determine may
be necessary or advisable or required to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms that all said
attorneys and agents, or any one of them, shall do or cause to be done by virtue
hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ MARC P. GEIGER Chief Executive Officer and May 30, 2000
--------------------------------- Chairman of the Board of Directors
Marc P. Geiger (Principal Executive Officer)
/s/ DONALD P. MULLER President, ARTISTdirect Agency May 30, 2000
--------------------------------- and Kneeling Elephant Records, and
Donald P. Muller Director
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ KEITH YOKOMOTO Chief Operating Officer, President May 30, 2000
--------------------------------- and Director
Keith Yokomoto
/s/ JAMES B. CARROLL Executive Vice President and May 30, 2000
--------------------------------- Chief Financial Officer (Principal
James B. Carroll Financial and Accounting Officer)
/s/ ALLEN D. LENARD
--------------------------------- Director May 30, 2000
Allen D. Lenard
/s/ CLIFFORD H. FRIEDMAN
--------------------------------- Director May 30, 2000
Clifford H. Friedman
/s/ STEPHEN KRUPA
--------------------------------- Director May 30, 2000
Stephen Krupa
/s/ RICK RUBIN
--------------------------------- Director May 30, 2000
Rick Rubin
/s/ CARLOS E. CISNEROS
--------------------------------- Director May 30, 2000
Carlos E. Cisneros
/s/ DARA KHOSROWSHAHI
--------------------------------- Director May 30, 2000
Dara Khosrowshahi
</TABLE>
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EXHIBIT INDEX
Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement No.
000-30063 on Form 8-A12G, together with any exhibits
thereto, which are incorporated herein by reference
pursuant to Item 3(c) to this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1999 Employee Stock Option Plan (As Amended and Restated
Through March 21, 2000).
99.2 1999 Employee Stock Purchase Plan (As Amended and Restated
Through March 21, 2000).
