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As filed with the Securities and Exchange Commission on September 11, 2000
Registration No. 333-_____
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UNITED STATES
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.)
250 Executive Park Boulevard, Suite 4000
San Francisco, California 94134
(Address of Principal Executive Offices, including Zip Code)
Non-Plan Stock Option Agreements of Registrant
(Full Title of the Plan)
James R. Tolonen
Chief Operating Officer and Chief Financial Officer
Snowball.com, Inc.
250 Executive Park Boulevard, Suite 4000
San Francisco, California 94134
(415) 508-2000
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Robert B. Dellenbach, Esq.
Darren L. Nunn, Esq.
Fenwick & West LLP
275 Battery Street
San Francisco, California 94111
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 1,590,000 $8.43/(1)/ $13,403,700 $3,539
=================================================================================================================================
</TABLE>
(1) Weighted average per share exercise price for such outstanding options
calculated pursuant to Rule 457(h)(1).
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PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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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) Registrant's prospectus filed on March 21, 2000 pursuant to Rule 424(b)
under the Securities Act relating to the registration statement on Form
S-1 (File No. 333-93487), which contains audited financial statements
of the Registrant as of December 31, 1997, 1998 and 1999.
(b) Registrant's quarterly report on Form 10-Q for the period ended March
31, 2000 filed with the Commission on May 15, 2000.
(c) Registrant's quarterly report on Form 10-Q for the period ended
June 30, 2000 filed with the Commission on August 14, 2000.
(d) The description of Registrant's common stock contained in Registrant's
registration statement on Form 8-A filed on January 25, 2000 under
Section 12(g) of 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
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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
Registrant 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
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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 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 agreements require 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 agreements provide that they are 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
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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 to be entered into between the Registrant
and each of its directors and officers may be sufficiently broad to permit
indemnification of the Registrant's directors and officers for liabilities
arising under the Securities Act.
See also the undertakings set out in response to Item 9.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.01 Non-Statutory Stock Option Agreement between the Registrant and
James Tolonen and related agreements.
4.02 Schedule of omitted details and forms of Non-Statutory Stock
Option Agreement and related agreements.
4.03 Registrant's Restated Certificate of Incorporation filed with the
Secretary of State of Delaware on March 24, 2000./(1)/
4.04 Registrant's Bylaws, as amended./(2)/
4.05 Form of specimen certificate for Registrant's Common Stock./(3)/
5.01 Opinion of Fenwick & West LLP.
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).
___________________________
/(1)/ Incorporated by reference from Exhibit 3.02 to the Registrant's
Amendment No. 2 to Registration Statement on Form S-1 (File No. 333-
93487) filed on February 28, 2000 ("Amendment No. 2").
/(2)/ Incorporated by reference from Exhibit 3.04 to Amendment No. 2.
/(3)/ Incorporated by reference from Exhibit 4.01 to the Registrant's
Amendment No. 3 to Registration Statement on Form S-1 (File No. 333-
93487) filed on March 10, 2000.
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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:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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; and
(c) 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) and (1)(b) above do not apply if the
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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 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
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.
(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.
(4) That, for purposes of determining any liability under the Securities Act,
each filing of Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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.
(5) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
Registrant has been advised that in the opinion of the 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 Registrant of expenses
incurred or paid by a director, officer or controlling person of 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 hereby, 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.
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below 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 (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same with all
exhibits thereto and all 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 substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 San Francisco, State of California, on the 11th day
of September, 2000.
SNOWBALL.COM, INC.
By: /s/ James R. Tolonen
___________________________________________
James R. Tolonen
Chief Financial Officer and Chief Operating
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
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<S> <C> <C>
Principal Executive Officer:
/s/ Mark A. Jung
___________________________________ President, Chief Executive Officer September 11, 2000
Mark A. Jung and a Director
Principal Financial Officer:
/s/ James R. Tolonen
__________________________________ Chief Financial Officer, Chief September 11, 2000
James R. Tolonen Operating Officer and a Director
Principal Accounting Officer:
/s/ Janette S. Chock
__________________________________ Controller September 11, 2000
Janette S. Chock
Additional Directors:
/s/ Christopher Anderson
__________________________________ Director September 11, 2000
Christopher Anderson
/s/ Richard A. LeFurgy
__________________________________ Director September 11, 2000
Richard A. LeFurgy
/s/ Michael Orsak
__________________________________ Director September 11, 2000
Michael Orsak
/s/ Robert H. Reid
__________________________________ Director September 11, 2000
Robert H. Reid
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Exhibit Index
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Exhibit
Number Exhibit Title
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4.01 Non-Statutory Stock Option Agreement between the Registrant and
James Tolonen and related agreements.
4.02 Schedule of omitted details and forms of Non-Statutory Stock
Option Agreement and related agreements.
5.01 Opinion of Fenwick & West LLP.
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).
