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Registration No._____________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GENERAL MAGIC, INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0250147
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
420 North Mary Avenue
Sunnyvale, CA 94086
(Address of principal executive offices) (Zip code)
GENERAL MAGIC, INC.
INDIVIDUAL NONQUALIFIED STOCK OPTION AGREEMENT
INDIVIDUAL RESTRICTED STOCK PURCHASE AGREEMENT
AMENDED AND RESTATED 1990 STOCK OPTION PLAN
1994 OUTSIDE DIRECTORS STOCK OPTION PLAN
(Full title of the plan)
John C. Zimmerman
Senior Vice President and
Chief Financial Officer
General Magic, Inc.
420 North Mary Avenue
Sunnyvale, CA 94086
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 408/774-4000.
This registration statement, including all exhibits and attachments, contains 11
pages. The exhibit index may be found on page 7 of the consecutively numbered
pages of the registration statement.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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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 per offering registration
registered registered share(1) price fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Individual Stock Option Agreement
Common Stock 500,000 $3.75 $ 1,875,000.00 $ 646.56
Par Value $.001
(including the option to
acquire such Common Stock)
Individual Restricted Stock Purchase Agreement
Common Stock 135,000 $0.10 $ 13,500.00 $ 4.66
Par Value $.001
(including the right to
acquire such Common Stock)
Amended and Restated 1990 Stock Option Plan
Common Stock 2,500,000 $3.81 $ 9,525,000.00 $3,284.51
Par Value $.001
(including options to
acquire such Common Stock)
1994 Outside Directors Stock Option Plan
Common Stock 150,000 $3.81 $ 571,500.00 $ 197.07
Par Value $.001
(including options to
acquire such Common Stock)
TOTAL 3,285,000 $11,985,000.00 $4,132.80
</TABLE>
- --------
(1) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to outstanding options to purchase the Common Stock and the
agreement to purchase restricted Common Stock, the price is based on the
exercise price. As to the remaining shares, the price is based upon the average
of the high and low prices of the Common Stock on September 18, 1996 as reported
on the National Association of Securities Dealers Automated Quotations System.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
General Magic, Inc. (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the Company's
latest fiscal year as filed with the Commission.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
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.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Delaware law authorizes corporations to eliminate the personal liability
of directors to corporations and their stockholders for monetary damages for
breach or alleged breach of the directors' "duty of care." While the relevant
statute does not change directors' duty of care, it enables corporations to
limit available relief to equitable remedies such as injunction or rescission.
The statute has no effect on directors' duty of loyalty, acts or omissions not
in good faith or involving intentional misconduct or knowing violations of law,
illegal payment of dividends and approval of any transaction from which a
director derives an improper personal benefit. The Company has adopted
provisions in its Certificate of Incorporation
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which eliminate the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty of
care. The Bylaws of the Company provide for indemnification of its directors,
officers, employees and agents to the full extent permitted by the General
Corporation Law of the State of Delaware, the Company's state of incorporation,
including those circumstances in which indemnification would otherwise be
discretionary under Delaware Law. Section 145 of the General Corporation Law of
the State of Delaware provides for indemnification in terms sufficiently broad
to indemnify such individuals, under certain circumstances, for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
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;
(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;
(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 (a)(1)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and 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 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
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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) Filing incorporating subsequent Exchange Act documents by
reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
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.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
Insofar as indemnification for liabilities arising under the
Securities Act 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.
SIGNATURE
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 Sunnyvale, State of California, on September 23,
1996.
GENERAL MAGIC, INC.
/s/ John C. Zimmerman
By:
------------------------------------
John C. Zimmerman, Senior Vice
President and Chief Financial Officer
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POWER OF ATTORNEY
The officers and directors of General Magic, Inc. whose signatures appear
below, hereby constitute and appoint John C. Zimmerman and Mary Doyle, and each
of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this registration statement on Form
S-8, and each of the undersigned does hereby ratify and confirm all that each of
said attorney and agent, or their, his or her substitutes, shall 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 by the following persons in the
capacities indicated on September 23, 1996.
Signature Title
- --------------------------------------------------------------------------------
/s/ Steve Markman
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Steve Markman President, Chief Executive Officer and
Chairman of the Board of Directors
(Principal Executive Officer)
/s/ John C. Zimmermann
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John C. Zimmermann Senior Vice President and Chief
Financial Officer (Principal Financial
and Accounting Officer)
/s/ Mary Doyle, Esq.
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Mary Doyle, Esq. General Counsel and Secretary
/s/ Jerry Baker
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Jerry Baker Director
/s/ Carl F. Pascarella
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Carl F. Pascarella Director
/s/ Roel Pieper
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Roel Pieper Director
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EXHIBIT INDEX
4.1 Certificate of Incorporation of the Company is incorporated by
reference to Exhibit 3.2 to the Company's Registration Statement on
Form S-1 filed with the Securities and Exchange Commission on
February 9, 1995 (File No. 33-87164)
4.2 Certificate of Amendment of Certificate Incorporation of the Company
is incorporated by reference to Exhibit 3.3 to the Company's
Registration Statement on Form S-1 filed with the Securities and
Exchange Commission on February 9, 1995 (File No. 33-87164)
4.3 Certificate of Correction of Certificate of Amendment of the
Company
4.4 Bylaws of the Company are incorporated by reference to Exhibit 3.5
to the Company's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on February 9, 1995 (File No.
33-87164)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Independent Auditors
24 Power of Attorney (included in signature pages to this
registration statement)
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EXHIBIT 4.3
CERTIFICATE OF CORRECTION OF
CERTIFICATE OF AMENDMENT OF
GENERAL MAGIC, INC.
Marc Porat and Michael Stern hereby certify that pursuant to Section
103(f) of the General Corporation Law of the State of Delaware:
1. The Certificate of Amendment of General Magic, Inc. which was
filed with the Secretary of State of Delaware on February 7, 1995 (the
"Amendment") is an inaccurate record of the corporate action which is referred
to therein.
2. That the Amendment was inaccurate in that the following portions
of Paragraph A of Article FOURTH of the Amendment state:
A. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Eighty One
Million Four Hundred Four Thousand Five Hundred Seventy
Three (81,404,573) consisting of:
(1) Twenty One Million Four Hundred and Four Thousand Five
Hundred and Seventy Three (21,404,573) shares of
Preferred Stock, par value one-tenth of one cent ($.001)
per share (the "Preferred Stock"); and
(2) Sixty Million (60,000,000) shares of Common Stock, par
value one-tenth of one cent ($.001) per share (the
"COMMON STOCK"), of which the following classes are
designated as follows:
3. That portion of Paragraph A in correct form is as follows:
A. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is One Hundred
Fifteen Million Two Hundred Thirty Nine Thousand One Hundred
and Twenty Six (115,239,126) consisting of:
(1) Twenty One Million Four Hundred and Four Thousand Five
Hundred and Seventy Three (21,404,573) shares of
Preferred
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Stock, par value one-tenth of one cent ($.001) per share
(the "Preferred Stock"); and
(2) Ninety Three Million Eight Hundred Thirty Four Thousand
Five Hundred Fifty Three (93,834,553) shares of Common
Stock, par value one-tenth of one cent ($.001) per share
(the "COMMON STOCK"), of which the following classes are
designated as follows:
IN WITNESS WHEREOF, the undersigned President and Secretary have hereunto
set their hand this 24th day of February, 1995.
GENERAL MAGIC, INC.
/s/ Marc Porat
By__________________________________________
Marc Porat, Chief Executive Officer
and Chairman of the Board
ATTEST:
/s/ Michael Stern
___________________________________
Michael Stern, Secretary
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[GRAY CARY WARE & FREIDENRICH LETTERHEAD]
EXHIBIT NO. 5
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825 OUR FILE NO.
TEL (415) 328-6561 1070429-904300
FAX (415) 327-3699 September 24, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for General Magic, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 3,285,000 shares of the
Common Stock, $.001 par value, of the Company which may be issued pursuant to
the exercise of options granted under the General Magic, Inc. Amended and
Restated 1990 Stock Option Plan, the General Magic, Inc. 1994 Outside Directors
Stock Option Plan and the Nonqualified Stock Option Agreement and the Restricted
Stock Purchase Agreement dated September 13, 1996 by and between the Company and
Mr. Steve Markman (collectively, the "Plans and Agreements").
We have examined all instruments, documents and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters of
Delaware corporation law, we have based our opinion solely upon our examination
of such laws and the rules and regulations of the authorities administering such
laws, all as reported in standard, unofficial compilations. We have not obtained
opinions of counsel licensed to practice in jurisdictions other than the State
of California.
Based on such examination, we are of the opinion that the 3,285,000 shares
of Common Stock which may be issued upon exercise of the options and
rights granted under the Plans and the Agreements are duly authorized shares of
the Company's Common Stock, and, when issued against receipt of the
consideration therefor in accordance with the provisions of the Plans and the
Agreements, will be validly issued, fully paid and nonassessable. We hereby
consent to the filing of this opinion as an exhibit to the above-referenced
Registration Statement and the use of our name wherever it appears.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
Consent of Independent Auditors
The Board of Directors
General Magic, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of General Magic, Inc. of our report dated February 8, 1996, except for
Note 10, which is as of February 27, 1996, relating to the consolidated balance
sheets of General Magic, Inc. (a development stage enterprise) and subsidiary
as of December 31, 1995 and 1994, and the related consolidated statements of
operations, stockholders' equity (deficit), and cash flows for each of the
years in the three-year period ended December 31, 1995 and for the period from
May 1, 1990 (inception) to December 31, 1995, which report appears in the
December 31, 1995, annual report on Form 10-K of General Magic, Inc.
/s/ KPMG Peat Marwick LLP
San Jose, California
September 23, 1996
