<PAGE>
As filed with the Securities and Exchange Commission on March 21, 2000
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
SNOWBALL.COM, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 94-3316902
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
Snowball.com, Inc.
250 Executive Park Blvd., Suite 4000
San Francisco, California 94134
(Address of Principal Executive Offices, including Zip Code)
(1) 1999 Equity Incentive Plan
(2) 2000 Equity Incentive Plan
(3) 2000 Employee Stock Purchase Plan
(Full Titles of the Plans)
James R. Tolonen
Chief Operating Officer and Chief Financial Officer
SNOWBALL.COM, INC.
250 Executive Park Blvd., Suite 4000
San Francisco, California 94134
(415) 508-2000
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Laird H. Simons III, Esq.
Darren L. Nunn, Esq.
William L. Hughes, Esq.
Fenwick & West LLP
275 Battery Street, Suite 1500
San Francisco, California 94111
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
To Be Offering Price Aggregate Registration
Title of Securities To Be Registered Registered Per Share Offering Price Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 6,573,924 (1) $11.00 (2) $72,313,164 (2) $19,091
Common Stock, $.001 par value 2,687,748 (3) $ 4.11 (4) $11,046,645 $ 2,917
Common Stock, $.001 par value 748,045 (5) $11.00 (4) $ 8,228,495 $ 2,173
- ------------------------------------------------------------------------------------------------------------------------
TOTAL 10,009,717 $24,181
========================================================================================================================
</TABLE>
(1) Represents the aggregate of 6,573,924 shares available for grant under the
Registrant's 2000 Equity Incentive Plan and 500,000 shares available for
grant under Registrant's 2000 Employee Stock Purchase Plan.
(2) Estimated as of March 21, 2000 pursuant to Rule 457(c) solely for the
purpose of calculating the registration fee.
(3) Represents shares subject to options outstanding as of March 21,
2000 under the Registrant's 1999 Equity Incentive Plan.
(4) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
(5) Represents shares subject to options outstanding as of March 21, 2000 under
Registrant's 2000 Equity Incentive Plan.
<PAGE>
PART II
-------
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"),
which contains audited financial statements of the Registrant for
the fiscal year ended December 31, 1999.
(b) The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form 8-A filed under
Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by Registrant 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 registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES - SECURITIES TO BE PURCHASED.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Fenwick & West LLP, Palo Alto, California, will pass upon the validity
of the shares of Common Stock offered hereby. An investment partnership and a
partner of Fenwick & West LLP beneficially own an aggregate of 12,948 shares of
the Registrant's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law,
the Registrant's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability: (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 that involve intentional misconduct or a knowing violation of law;
(iii) under Section 174 of the Delaware General Corporation Law; or (iv) for any
transaction from which the director derived an improper personal benefit.
In addition, as permitted by Section 145 of the Delaware General
Corporation Law, the Bylaws of the Registrant provide that: (i) the Registrant
is required to indemnify its directors and officers, as well as directors and
officers of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise when they are serving in such capacities at the
request of the Registrant, to the fullest extent permitted by the Delaware
General Corporation Law; (ii) upon receipt of an undertaking to repay such
advances if indemnification is determined to be unavailable, the Registrant is
required to advance expenses, as incurred, to its directors and officers to the
fullest extent permitted by the Delaware General Corporation Law in connection
with a proceeding (except that the Registrant is not required to advance
expenses to a person against whom it brings a claim for breach of the duty of
loyalty, failure to act in good faith, intentional misconduct, knowing violation
of law or deriving an improper personal benefit); (iii) the rights conferred in
the Bylaws are not exclusive and the Registrant is authorized to enter into
indemnification agreements with its directors, officers and employees and
agents; and (iv) the
<PAGE>
Registrant may not retroactively amend the Bylaw provisions in a way that
adversely affects the indemnification provided thereunder.
The Registrant's policy is to enter into indemnity agreements with each
of its directors and officers. The indemnity agreements provide that directors
and officers will be indemnified and held harmless against all expenses
(including attorneys' fees), judgments, fines, ERISA excise taxes or penalties
and settlement amounts paid or reasonably incurred by them in any action, suit
or proceeding, including any derivative action by or in the right of the
Registrant, on account of their services as a director or officer of the
Registrant or as directors or officers of any other corporation, partnership or
enterprise when they are serving in such capacities at the request of the
Registrant; except that no indemnity is provided in a derivative action in which
such director or officer is finally adjudged by a court to be liable to the
Company due to willful misconduct in the performance of his or her duty to the
Company, unless the court determines that such director or officer is entitled
to indemnification. The Registrant will not be obligated pursuant to the
agreements to indemnify or advance expenses to an indemnified party with respect
to proceedings or claims (i) initiated voluntarily by the indemnified party and
not by way of defense, except with respect to a proceeding authorized by the
Board of Directors and successful proceedings brought to enforce a right to
indemnification and/or advancement of expenses under the indemnity agreements;
(ii) for any amounts paid in settlement of a proceeding unless the Registrant
consents to such settlement; (iii) on account of any suit in which judgment is
rendered against the indemnified party for an accounting of profits made from
the purchase or sale by the indemnified party of securities of the Registrant
pursuant to the provisions of Section 16(b) of the Exchange Act and related laws
and regulations; (iv) on account of conduct by an indemnified party that is
finally adjudged to have been in bad faith or conduct that the indemnified party
did not reasonably believe to be in, or not opposed to, the best interests of
the Registrant; (v) on account of any criminal action or proceeding arising out
of conduct that the indemnified party had reasonable cause to believe was
unlawful; or (vi) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful.
The indemnity agreement requires a director or officer to reimburse the
Registrant for expenses advanced only if and to the extent it is ultimately
determined that the director or executive officer is not entitled, under
Delaware law, the Registrant's Certificate of Incorporation, the Registrant's
Bylaws, his or her indemnity agreement or otherwise to be indemnified for such
expenses. The indemnity agreement provides that it is not exclusive of any
rights a director or executive officer may have under the Certificate of
Incorporation, the Bylaws, other agreements, any majority-in-interest vote of
the stockholders or vote of disinterested directors, Delaware law, or otherwise.
The indemnity agreements require the Registrant to maintain director
and officer liability insurance to the extent that it is economically
reasonable. The Registrant currently carries a director and officer insurance
policy.
The Registrant intends to enter into Indemnification Agreements with
each of its current directors and officers to give such directors and officers
additional contractual assurances regarding the scope of the indemnification set
forth in the Registrant's Certificate of Incorporation and Bylaws and to provide
additional procedural protections in the event of litigation. At present, there
is no pending litigation or proceeding involving a director, officer or employee
of the Registrant regarding which indemnification is sought, nor is the
Registrant aware of any threatened litigation that may result in claims for
indemnification.
Reference is also made to Section 8 of the Underwriting Agreement
relating to Registrant's initial public offering, effected pursuant to
Registrant's Registration Statement on Form S-1 (Registration No. 333-93487)
originally filed with the Commission on December 23, 1999, as subsequently
amended (the "Form S-1"), which provides for the indemnification of officers,
directors and controlling persons of the Registrant against certain liabilities.
The indemnification provision in the Registrant's Certificate of Incorporation,
Bylaws and the Indemnity Agreements entered into between the Registrant and each
of its directors and officers maybe sufficiently broad to permit indemnification
of the Registrant's directors and officers for liabilities arising under the
Securities Act.
The Registrant maintains directors' and officers' liability insurance.
See also the undertakings set out in response to Item 9.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE>
ITEM 8. EXHIBITS.
Exhibit
Number Exhibit Title
------ ------------------------------------------------------
4.01 Registrant's Amended and Restated Certificate of
Incorporation (incorporated by reference to Exhibit
3.01 on the Form S-1)
4.02 Registrant's Amended and Restated Certificate of
Incorporation (to be filed immediately after the
closing of the Registrant's initial public offering)
(incorporated herein by reference to Exhibit 3.02 of
the Form S-1)
4.03 Registrant's Bylaws (incorporated herein by reference
to Exhibit 3.03 of the Form S-1)
4.04 Registrant's Restated Bylaws (adopted February 22,
2000 with an effective date immediately following the
Registrant's initial public offering) (incorporated
herein by reference to Exhibit 3.04 of the Form S-1).
4.05 Form of Specimen Certificate for Registrant's common
stock (incorporated herein by reference to Exhibit
4.01 of the Form S-1).
4.06 Amended and Restated Investor Rights Agreement,
dated as of December 20, 1999 (incorporated herein by
reference to Exhibit 4.02 of the Form S-1).
4.07 Registrant's 1999 Equity Incentive Plan and related
agreements (incorporated herein by reference to
Exhibit 10.02 of the Form S-1).
4.08 Registrant's 2000 Equity Incentive Plan and forms of
stock option agreements and stock option exercise
agreements (incorporated herein by reference to
Exhibit 10.03 of the Form S-1).
4.09 Registrant's 2000 Employee Stock Purchase Plan and
forms of related agreements (incorporated herein by
reference to Exhibit 10.04 of the Form S-1).
5.01 Opinion of Fenwick & West LLP regarding legality of
the securities being registered.
23.01 Consent of Fenwick & West LLP (included in Exhibit
5.01).
23.02 Consent of Ernst & Young LLP, independent auditors.
24.01 Power of Attorney (see page 5).
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 the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent
-3-
<PAGE>
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective 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;
provided, however, that paragraphs (1)(a)(i) and (1)(b)(ii) do not apply if the
- -------- -------
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act of 1934 that are incorporated by reference in the 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.
-4-
<PAGE>
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
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 San Francisco, State of California, on this 20th day
of March 2000.
SNOWBALL.COM, INC.
By: /s/ James R. Tolonen
-----------------------------------
James R. Tolonen
Chief Financial Officer and Chief
Operating Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Mark A. Jung and James R. Tolonen,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this registration statement on
Form S-8 (the "Registration Statement"), and to sign any registration statement
for the same offering covered by the Registration Statement, and to file the
same, with exhibits thereto and other documents in connection therewith, 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 and necessary to be done in and about the
premises, as fully to all intents and purposes as he or it might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or his or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed on March 20, 2000 by the following
persons in the capacities indicated:
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Mark A. Jung President, Chief Executive Officer
___________________________________________
Mark A. Jung (Principal Executive Officer) and Director
/s/ James R. Tolonen Chief Operating Officer and Chief Financial Officer
___________________________________________
James R. Tolonen (Principal Financial Officer) and Director
/s/ Janette S. Chock Controller and Chief Accounting Officer (Principal
___________________________________________
Janette S. Chock Accounting Officer)
/s/ Christopher Anderson Director
___________________________________________
Christopher Anderson
/s/ Richard A. LeFurgy Director
___________________________________________
Richard A. LeFurgy
Director
___________________________________________
Michael Orsak
/s/ Robert H. Reid Director
___________________________________________
Robert H. Reid
</TABLE>
-5-
<PAGE>
SNOWBALL.COM, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Exhibit Title
------ ------------------------------------------------------
4.01 Registrant's Amended and Restated Certificate of
Incorporation (incorporated by reference to Exhibit
3.01 of the Form S-1)
4.02 Registrant's Amended and Restated Certificate of
Incorporation (to be filed immediately after the
closing of the Registrant's initial public offering)
(incorporated herein by reference to Exhibit 3.02 of
the Form S-1)
4.03 Registrant's Bylaws (incorporated herein by reference
to Exhibit 3.03 of the Form S-1)
4.04 Registrant's Restated Bylaws (adopted February 22,
2000 with an effective date immediately following the
Registrant's initial public offering) (incorporated
herein by reference to Exhibit 3.04 of the Form S-1.
4.05 Form of Specimen Certificate for Registrant's common
stock (incorporated herein by reference to Exhibit
4.01 of the Form S-1).
4.06 Amended and Restated Investor Rights Agreement,
dated as of December 20, 1999 (incorporated herein by
reference to Exhibit 4.02 of the Form S-1).
4.07 Registrant's 1999 Equity Incentive Plan and related
agreements (incorporated herein by reference to
Exhibit 10.02 of the Form S-1).
4.08 Registrant's 2000 Equity Incentive Plan and forms of
stock option agreements and stock option exercise
agreements (incorporated herein by reference to
Exhibit 10.03 of the Form S-1).
4.09 Registrant's 2000 Employee Stock Purchase Plan and
forms of related agreements (incorporated herein by
reference to Exhibit 10.04 of the Form S-1).
5.01 Opinion of Fenwick & West LLP regarding legality of
the securities being registered.
23.01 Consent of Fenwick & West LLP (included in Exhibit
5.01).
23.02 Consent of Ernst & Young, independent auditors.
24.01 Power of Attorney (see page 5).
<PAGE>
(Letterhead of Fenwick & West LLP)
March 21, 2000
Snowball.com, Inc.
250 Executive Park Blvd., Suite 4000
San Francisco, California 94134
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed by Snowball.com, Inc., a Delaware
corporation, with the Securities and Exchange Commission (the "Commission") on
or about March 21, 2000 in connection with the registration under the Securities
Act of 1933, as amended, of an aggregate of 10,009,717 shares of your Common
Stock (the "Stock") subject to issuance by you upon the exercise of: (1) stock
options granted by you under your 1999 Equity Incentive Plan, which plan has
been terminated and under which no further options may be granted (the "1999
Plan"); (2) stock options granted or to be granted by you under your 2000 Equity
Incentive Plan (the "2000 Equity Plan"); and (3) purchase rights granted or to
be granted by you under your 2000 Employee Stock Purchase Plan (the "2000
Purchase Plan"). The plans referred to in clauses (1) through (3) above are
collectively referred to in this letter as the "Plans." In rendering this
opinion, we have examined the following:
(1) your registration statement on Form S-1 (Registration No. 333-93487)
filed with, and declared effective by, the Commission on March 20,
2000, together with the Exhibits filed as a part thereof, including
without limitation, your Certificate of Incorporation, filed as
Exhibit 3.02 thereof, Bylaws, filed as Exhibit 3.04 thereof, and each
of the Plans and related forms of stock option grant and purchase and
exercise agreements;
(2) your registration statement on Form 8-A (File No. 000-29121), filed
with the Commission on January 25, 2000;
(3) the Registration Statement, together with the Exhibits filed as a part
thereof;
(4) the prospectuses prepared in connection with the Registration
Statement;
(5) the minutes of meetings and actions by written consent of the
shareholders and Board of Directors that are contained in your minute
books, that are in our possession;
(6) the stock records that you have provided to us (including a list of
stockholders of even date herewith and a list of option and warrant
holders of even date herewith) regarding your capital stock and rights
to acquire your capital stock, which you have represented to us are
true and complete as of their dates); and
(7) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the documents, the
lack of any undisclosed terminations,
<PAGE>
modifications, waivers or amendments to any documents reviewed by us and the due
authorization, execution and delivery of all documents where due authorization,
execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied for the
purposes of this opinion solely upon our examination of the documents referred
to above and have assumed the current accuracy and completeness of the
information obtained from public officials, records and documents referred to
above.
We are admitted to practice law in the State of California, and we express
no opinion herein with respect to the laws of any jurisdiction other than the
existing laws of the United States of America, the State of California and the
existing Delaware General Corporation Law.
In connection with our opinion expressed below, we have assumed that, at or
prior to the time of the delivery of any shares of Stock, the Registration
Statement will have become effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock.
Based upon the foregoing, it is our opinion that the 10,009,717 shares of
Stock that may be issued and sold by you upon the exercise of: (1) stock options
granted under the 1999 Plan; (2) stock options granted or to be granted under
the 2000 Equity Plan; and (3) purchase rights granted or to be granted under the
2000 Purchase Plan, when issued, sold and delivered in accordance with the
applicable plan and stock option or purchase agreements to be entered into
thereunder and in the manner and for the consideration stated in the
Registration Statement, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the prospectuses constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof.
Very truly yours,
/s/ Fenwick & West LLP
<PAGE>
EXHIBIT 23.02
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the 1999 Equity Incentive Plan, 2000 Equity Incentive
Plan and 2000 Employee Stock Purchase Plan of Snowball.com, Inc. of our report
dated January 28, 2000, with respect to the consolidated financial statements of
Snowball.com, Inc included in its Registration Statement (Form S1 No. 333-93487)
filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
Palo Alto, California
March 20, 2000
