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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.
1995 EMPLOYEE STOCK PURCHASE PLAN
----------------------------------------
(Full title of the plan)
Steven Markman
President, Chief Executive Officer, and
Chairman of the Board of Directors
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 14
pages. The exhibit index may be found on pages 8-9 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 to be Amount to be offering price aggregate Amount of
registered(1) registered per share(2) offering price(2) registration fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1995 Employee Stock Purchase Plan
- ---------------------------------
Common Stock 275,000 $1.67344 $460,196.00 $139.45
Par Value $0.001
TOTALS 275,000 $460,196.00 $139.45
</TABLE>
(1) The securities to be registered include rights to acquire such Common
Stock.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The General Magic, Inc. 1995 Employee Stock Purchase Plan
establishes a purchase price equal to 85% of the fair market value of the
Company's Common Stock and, therefore, the price for purchase rights under this
plan is based upon 85% of the average of the high and low prices of the Common
Stock on August 5, 1997, 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 ended December 31, 1996, as filed with the Securities and
Exchange Commission (File No. 0-25374).
(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 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
Inapplicable.
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
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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
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 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;
(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-
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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 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) Filing incorporating subsequent Exchange Act documents by
reference
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
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 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.
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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 August 8,
1997.
General Magic, Inc.
By: /s/ Steven Markman
-------------------------------------
Steven Markman,
President, Chief Executive Officer,
and Chairman of the Board of
Directors
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of General Magic, Inc. whose signatures
appear below, hereby constitute and appoint Steven Markman and James McCormick,
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 or his 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 August 8, 1997.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Steven Markman President, Chief Executive Officer, Chairman
- ----------------------------- of the Board, and Director
Steven Markman (Principal Executive Officer)
/s/ James McCormick Chief Financial Officer
- ----------------------------- (Principal Financial and Accounting Officer)
James McCormick
Director
- -----------------------------
Carl F. Pascarella
/s/ Roel Pieper Director
- -----------------------------
Roel Pieper
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered Page
-------------
<S> <C> <C>
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 Agreement and Plan of Merger between General Magic, --
Inc., a California Corporation, and the Company is
incorporated by reference to Exhibit 2.1 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 Amendment of Certificate of
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)
4.4 Certificate of Correction of the Certificate of
Amendment of the Company is incorporated by reference
to Exhibit 4.3 of the Company's Registration Statement
on Form S-8 filed with the Securities and Exchange
Commission on September 25, 1996 (File No. 333-12667)
4.5 Certificate of Retirement and Elimination of Classes 10
of Common Stock and Series of Preferred Stock of the
Company, as filed with the Secretary of State of the
State of Delaware on February 24, 1995
4.6 Amended and Restated Bylaws of the Company are --
incorporated by reference to Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the Company's
fiscal year ended December 31, 1996, filed with the
Securities and Exchange Commission on March 31, 1997
(File No. 0-25374)
5 Opinion re legality 13
</TABLE>
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<TABLE>
<S> <C> <C>
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of KPMG Peat Marwick LLP 14
24 Power of Attorney (included in signature pages to --
this registration statement)
</TABLE>
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Exhibit 4.5
CERTIFICATE OF RETIREMENT AND ELIMINATION
OF CLASSES OF COMMON STOCK AND
SERIES OF PREFERRED STOCK OF GENERAL MAGIC, INC.
(Pursuant to Section 243 of the General Corporation Law of
the State of Delaware)
General Magic, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), certifies
as follows:
FIRST: Paragraph A of Article FOURTH of the Certificate of
Incorporation of the Corporation authorizes the issuance of classes of Common
Stock, par value one-tenth of one cent ($.001) per share (the "Common Stock") of
which Common Stock, 60,000,000 shares have been designated "COMMON STOCK,"
1,350,000 shares have been designated "Class A Common Stock," 1,350,000 shares
have been designated as "Class B Common Stock," 1,350,000 shares have been
designated as "Class C Common Stock," 23,382,269 shares have been designated as
"Class D Common Stock," 1,350,000 shares have been designated as "Class E Common
Stock," 450,000 shares have been designated as "Class F Common Stock," 450,000
shares have been designated as "Class G Common Stock," 542,634 shares have been
designated as "Class H Common Stock," 175,000 shares have been designated as
"Class I Common Stock," 350,000 shares have been designated as "Class J Common
Stock," 175,000 shares have been designated as "Class K Common Stock," 350,000
shares have been designated as "Class L Common Stock," 659,650 shares have been
designated as "Class M Common Stock," and 1,900,000 shares have been designated
as "Class N Common Stock," and 21,404,573 shares of Preferred Stock, par value
one-tenth of one cent ($.001) per share (the "Preferred Stock").
SECOND: That at a meeting of the Board of Directors of the Corporation,
the Board of Directors of the Corporation, by unanimous written consent, retired
the following shares of Class A, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class I, Class J, Class K, Class L, Class M and Class N Common
Stock, and the following shares of Series A, Series B, Series C, Series E,
Series F, Series G, Series H, Series I, Series J, Series K, Series L, Series M
and Series N Preferred Stock:
<TABLE>
<S> <C>
1,350,000 shares of Class A Common Stock,
1,350,000 shares of Class B Common Stock,
1,350,000 shares of Class C Common Stock,
23,382,269 shares of Class D Common Stock,
1,350,000 shares of Class E Common Stock,
450,000 shares of Class F Common Stock,
450,000 shares of Class G Common Stock,
542,634 shares of Class H Common Stock,
</TABLE>
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<TABLE>
<S> <C>
175,000 shares of Class I Common Stock,
350,000 shares of Class J Common Stock,
175,000 shares of Class K Common Stock,
350,000 shares of Class L Common Stock,
659,650 shares of Class M Common Stock,
1,900,000 shares of Class N Common Stock, and
2,700,000 shares of Series A Preferred Stock,
2,700,000 shares of Series B Preferred Stock,
2,700,000 shares of Series C Preferred Stock,
2,700,000 shares of Series E Preferred Stock,
900,000 shares of Series F Preferred Stock,
900,000 shares of Series G Preferred Stock,
1,085,271 shares of Series H Preferred Stock,
350,000 shares of Series I Preferred Stock,
700,000 shares of Series J Preferred Stock,
350,000 shares of Series K Preferred Stock,
700,000 shares of Series L Preferred Stock,
1,319,302 shares of Series M Preferred Stock,
3,800,000 shares of Series N Preferred Stock,
</TABLE>
which shares constituted all of the authorized shares of such Classes and
Series.
THIRD: That Paragraph C of Article FOURTH of the Certificate of
Incorporation of the Corporation prohibits the reissuance of retired shares of
each such class and as such class or as any other class of Common Stock.
FOURTH: Pursuant to the provisions of Section 243 of the Corporation
Law of Delaware, all reference to such retired Class A Common Stock, Class B
Common Stock, Class C Common Stock, Class D Common Stock, Class E Common Stock,
Class F Common Stock, Class G Common Stock, Class H Common Stock, Class I Common
Stock, Class J Common Stock, Class K Common Stock, Class L Common Stock, Class M
Common Stock, and Class N Common Stock, and Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock, Series G Preferred Stock, Series H Preferred Stock, Series I
Preferred Stock, Series J Preferred Stock, Series K Preferred Stock, Series L
Preferred Stock, Series M Preferred Stock and Series N Preferred Stock in the
Certificate of Incorporation of the Corporation are hereby eliminated.
FIFTH: Upon the effective date of the filing of this certificate as
therein provided, the Certificate of Incorporation of the Corporation shall be
amended so as to effect a reduction in the authorized number of shares of Common
Stock to the extent of 33,834,553 shares, and a reduction in the authorized
number of shares of Preferred Stock to the extent of 20,904,573 shares, being
the total number of shares retired, so that the total number of shares of all
classes of stock which the Corporation shall have authority to issue is
60,500,000, which consists of
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60,000,000 shares of Common Stock with par value of $.001 per share and 500,000
shares of Preferred Stock with par value of $.001 per share.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed and attested by its duly authorized officers this 24th day of February,
1995.
GENERAL MAGIC, INC.
By: /S/ Marc Porat
---------------------------------------
Marc Porat, Chief Executive Officer
and Chairman of the Board
ATTEST
By: /S/ Michael Stern
------------------------------
Michael Stern, Secretary
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[Letterhead of GRAY CARY WARE & FREIDENRICH, A Professional Corporation]
EXHIBIT 5
August 7, 1997
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 275,000 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the exercise of purchase rights granted under the General Magic, Inc. 1995
Employee Stock Purchase Plan (the "Plan").
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 275,000
shares of Common Stock which may be issued upon exercise of purchase rights
granted under the Plan 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 Plan, will be validly issued, fully paid and
nonassessable. We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Very truly yours,
/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
dated August 11, 1997, on Form S-8 of General Magic, Inc. of our report dated
February 7, 1997, relating to the consolidated balance sheets of General Magic,
Inc. (a development stage enterprise) and subsidiary as of December 31, 1996
and 1995, 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, 1996, and for the period from May 1, 1990 (inception) to
December 31, 1996, which report appears in the December 31, 1996, annual report
on Form 10-K of General Magic, Inc.
/s/ KPMG Peat Marwick LLP
San Jose, California
August 7, 1997
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