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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.
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(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
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(Address of principal executive offices) (Zip code)
GENERAL MAGIC, INC.
INDIVIDUAL RESTRICTED STOCK GRANT
AGREEMENT
--------------------------------------------
(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
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408) 774-4000.
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
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Proposed maximum Proposed maximum
Title of Amount to be offering price aggregate Amount of
Securities to be registered per share offering price(1) registration fee
registered
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Common Stock 280,000 $1.40625 $393,750 $116.16
Par Value $0.001
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(1) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The price is based upon the average of the high and low price
per share of the Common Stock on February 3, 1998, 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
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
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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 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
February 5, 1998.
General Magic, Inc.
By: /s/ STEVEN MARKMAN
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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 P.
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 February 5, 1998.
SIGNATURE TITLE
/s/ STEVEN MARKMAN President, Chief Executive Officer, Chairman
- ---------------------------------- of the Board, and Director
Steven Markman (Principal Executive Officer)
/s/ JAMES P. MCCORMICK Chief Financial Officer
- ---------------------------------- (Principal Financial and Accounting Officer)
James P. McCormick
/s/ Michael E. Kalogris Director
- ----------------------------------
Michael E. Kalogris
Director
- ----------------------------------
Carl F. Pascarella
Director
- ----------------------------------
Roel Pieper
/s/ DENNIS F. STRIGL
- ---------------------------------- Director
Dennis F. Strigl
/s/ SUSAN G. SWENSON
- ---------------------------------- Director
Susan G. Swenson
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EXHIBIT INDEX
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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 of Common Stock and
Series of Preferred Stock of the Company is incorporated by reference to
Exhibit 4.5 of the Company's Registration Statement on Form S-8 filed
with the Securities and Exchange Commission on August 11, 1997
4.6 Second Amended and Restated Bylaws of the Company
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 4.6
SECOND AMENDED AND RESTATED
BYLAWS
OF
GENERAL MAGIC, INC.
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TABLE OF CONTENTS
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ARTICLE I STOCKHOLDERS......................................... 1
Section 1.1. Annual Meeting............................... 1
Section 1.2. Special Meetings............................. 1
Section 1.3. Notice of Meetings........................... 1
Section 1.4. Quorum....................................... 2
Section 1.5. Conduct of the Stockholders' Meeting......... 2
Section 1.6. Conduct of Business.......................... 2
Section 1.7. Notice of Stockholder Business............... 3
Section 1.8. Proxies and Voting........................... 3
Section 1.9. Stock List................................... 4
ARTICLE II BOARD OF DIRECTORS.................................. 4
Section 2.1. Number and Term of Office.................... 4
Section 2.2. Vacancies and Newly Created Directorships.... 5
Section 2.3. Removal...................................... 5
Section 2.4. Regular Meetings............................. 5
Section 2.5. Special Meetings............................. 5
Section 2.6. Quorum; Required Approvals................... 5
Section 2.7. Participation in Meetings by Conference
Telephone.................................. 6
Section 2.8. Conduct of Business.......................... 6
Section 2.9. Powers....................................... 6
Section 2.10.Compensation of Directors................... 7
Section 2.11.Nomination of Director Candidates........... 7
ARTICLE III COMMITTEES......................................... 8
Section 3.1. Committees of the Board of Directors......... 8
Section 3.2. Conduct of Business.......................... 8
ARTICLE IV OFFICERS............................................ 9
Section 4.1. Generally.................................... 9
Section 4.2. Chairman of the Board........................ 9
Section 4.3. President.................................... 9
Section 4.4. Vice President............................... 9
Section 4.5. Treasurer and Chief Financial Officer........ 9
Section 4.6. Secretary.................................... 10
Section 4.7. Assistant Secretary.......................... 10
Section 4.8. Subordinate Officers, etc.................... 10
Section 4.9. Delegation of Authority...................... 10
Section 4.10.Removal..................................... 10
Section 4.11.Action With Respect to Securities of Other
Corporations.............................. 10
ARTICLE V STOCK................................................ 11
Section 5.1. Certificates of Stock........................ 11
Section 5.2. Transfers of Stock........................... 11
Section 5.3. Record Date.................................. 11
Section 5.4. Lost, Stolen or Destroyed Certificates....... 11
Section 5.5. Regulations.................................. 11
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TABLE OF CONTENTS
(continued)
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ARTICLE VI NOTICES............................................. 11
Section 6.1. Notices...................................... 11
Section 6.2. Waivers...................................... 12
ARTICLE VII MISCELLANEOUS...................................... 12
Section 7.1. Facsimile Signatures......................... 12
Section 7.2. Corporate Seal............................... 12
Section 7.3. Reliance Upon Books, Reports and Records..... 12
Section 7.4. Fiscal Year.................................. 12
Section 7.5. Time Periods................................. 13
ARTICLE VIII INDEMNIFICATION OF DIRECTORS AND OFFICERS......... 13
Section 8.1. Right to Indemnification..................... 13
Section 8.2. Right of Claimant to Bring Suit.............. 14
Section 8.3. Non-Exclusivity of Rights.................... 14
Section 8.4. Indemnification Contracts.................... 14
Section 8.5. Insurance.................................... 15
Section 8.6. Effect of Amendment.......................... 15
ARTICLE IX AMENDMENTS.......................................... 15
Section 9.1. Amendment of Bylaws.......................... 15
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GENERAL MAGIC, INC.
A DELAWARE CORPORATION
BYLAWS
ARTICLE I
STOCKHOLDERS
Section 1.1. Annual Meeting. An annual meeting of the
stockholders, for the election of directors to succeed those whose terms
expire and for the transaction of such other business as may properly
come before the meeting, shall be held at such place, on such date, and
at such time as the Board of Directors shall each year fix, which date
shall be within thirteen months subsequent to the later of the date of
incorporation or the last annual meeting of stockholders.
Section 1.2. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes prescribed in the notice of
the meeting, may be called only by (i) the Board of Directors pursuant
to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to
the Board of Directors for adoption) or (ii) the Chairman of the Board
or (iii) the President or (iv) the holders of not less than 10% of all
shares entitled to cast votes at the meeting, voting together as a
single class and shall be held at such place, on such date, and at such
time as they shall fix. Business transacted at special meetings shall be
confined to the purpose or purposes stated in the notice.
Section 1.3. Notice of Meetings. Subject to Section 6.1
hereof, written notice of the place, date, and time of all meetings of
the stockholders shall be given, not less than ten (10) nor more than
sixty (60) days before the date on which the meeting is to be held, to
each stockholder entitled to vote at such meeting, except as otherwise
provided herein or required by law (meaning, here and hereinafter, as
required from time to time by the Delaware General Corporation Law or
the Certificate of Incorporation of the Corporation).
When a meeting is adjourned to another place, date or
time, written notice need not be given of the adjourned meeting if the
place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the date of any
adjourned meeting is more than thirty (30) days after the date for which
the meeting was originally noticed, or if a new record date is fixed for
the adjourned meeting, written notice of the place, date, and time of
the adjourned meeting shall be given in conformity herewith. At any
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
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Section 1.4. Quorum. At any meeting of the stockholders,
the holders of a majority of all of the shares of the stock entitled to
vote at the meeting, present in person or by proxy, shall constitute a
quorum for all purposes, unless or except to the extent that the
presence of a larger number may be required by law.
If a quorum shall fail to attend any meeting, the chairman
of the meeting or the holders of a majority of the shares of stock
entitled to vote who are present, in person or by proxy, may adjourn the
meeting to another place, date, or time.
If a notice of any adjourned special meeting of
stockholders is sent to all stockholders entitled to vote thereat,
stating that it will be held with those present constituting a quorum,
then except as otherwise required by law, those present at such
adjourned meeting shall constitute a quorum, and all matters shall be
determined by a majority of the votes cast at such meeting.
Section 1.5. Conduct of the Stockholders' Meeting. At
every meeting of the stockholders, the Chairman, if there is such an
officer, or if not, the President of the Corporation, or in his absence
the Vice President designated by the President, or in the absence of
such designation any Vice President, or in the absence of the President
or any Vice President, a chairman chosen by the majority of the voting
shares represented in person or by proxy, shall act as Chairman. The
Secretary of the Corporation or a person designated by the Chairman
shall act as Secretary of the meeting. Unless otherwise approved by the
Chairman, attendance at the stockholders' meeting is restricted to
stockholders of record, persons authorized in accordance with Section
1.8 of these Bylaws to act by proxy, and officers of the Corporation.
Section 1.6. Conduct of Business. The Chairman shall call
the meeting to order, establish the agenda, and conduct the business of
the meeting in accordance therewith or, at the Chairman's discretion, it
may be conducted otherwise in accordance with the wishes of the
stockholders in attendance. The date and time of the opening and closing
of the polls for each matter upon which the stockholders will vote at
the meeting shall be announced at the meeting.
The Chairman shall also conduct the meeting in an orderly
manner, rule on the precedence of and procedure on, motions and other
procedural matters, and exercise discretion with respect to such
procedural matters with fairness and good faith toward all those
entitled to take part. The Chairman may impose reasonable limits on the
amount of time taken up at the meeting on discussion in general or on
remarks by any one stockholder. Should any person in attendance become
unruly or obstruct the meeting proceedings, the Chairman shall have the
power to have such person removed from participation. Notwithstanding
anything in the Bylaws to the contrary, no business shall be conducted
at a meeting except in accordance with the procedures set forth in this
Section 1.6 and Section 1.7, below. The Chairman of a meeting shall, if
the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting and in accordance with the
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provisions of this Section 1.6 and Section 1.7, and if he should so
determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
Section 1.7. Notice of Stockholder Business. At an annual
or special meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be
properly brought before a meeting, business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (b) properly brought before the
meeting by or at the direction of the Board of Directors, (c) properly
brought before an annual meeting by a stockholder, or (d) properly
brought before a special meeting by a stockholder, but if, and only if,
the notice of a special meeting provides for business to be brought
before the meeting by stockholders. For business to be properly brought
before a meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder proposal to be presented at an annual meeting
shall be received at the Corporation's principal executive offices not
less than 120 calendar days in advance of the date that the
Corporation's (or the Corporation's predecessor's) proxy statement was
released to stockholders in connection with the previous year's annual
meeting of stockholders, except that if no annual meeting was held in
the previous year or the date of the annual meeting has been changed by
more than 30 calendar days from the date contemplated at the time of the
previous year's proxy statement, or in the event of a special meeting,
notice by the stockholder to be timely must be received not later than
the close of business on the tenth day following the day on which such
notice of the date of the meeting was mailed or such public disclosure
was made. A stockholder's notice to the Secretary shall set forth as to
each matter the stockholder proposes to bring before the annual or
special meeting (a) a brief description of the business desired to be
brought before the annual or special meeting and the reasons for
conducting such business at the special meeting, (b) the name and
address, as they appear on the Corporation's books, of the stockholder
proposing such business, (c) the class and number of shares of the
Corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business.
Section 1.8. Proxies and Voting. At any meeting of the
stockholders, every stockholder entitled to vote may vote in person or
by proxy authorized by an instrument in writing or by a transmission
permitted by law filed in accordance with the procedure established for
the meeting. No stockholder may authorize more than one proxy for his
shares.
Each stockholder shall have one vote for every share of
stock entitled to vote which is registered in his or her name on the
record date for the meeting, except as otherwise provided herein or
required by law.
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All voting, including on the election of directors but
excepting where otherwise required by law, may be by a voice vote;
provided, however, that upon demand therefor by a stockholder entitled
to vote or his or her proxy, a stock vote shall be taken. Every stock
vote shall be taken by ballots, each of which shall state the name of
the stockholder or proxy voting and such other information as may be
required under the procedure established for the meeting. Every vote
taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the
votes cast unless otherwise required by the Certificate of
Incorporation, and except as otherwise required by law or the
Certificate of Incorporation, all other matters shall be determined by a
majority of the votes cast.
Section 1.9. Stock List. A complete list of stockholders
entitled to vote at any meeting of stockholders, arranged in
alphabetical order for each class of stock and showing the address of
each such stockholder and the number of shares registered in his or her
name, shall be open to the examination of any such stockholder, for any
purpose germane to the meeting, during ordinary business hours for a
period of at least ten (10) days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held.
The stock list shall also be kept at the place of the
meeting during the whole time thereof and shall be open to the
examination of any such stockholder who is present. This list shall
presumptively determine the identity of the stockholders entitled to
vote at the meeting and the number of shares held by each of them.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. Number and Term of Office.
(a) The number of directors shall be five (5), and
thereafter shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there exist any vacancies
in previously authorized directorships at the time any such resolution
is presented to the Board for adoption), provided that in no event shall
the number of directors exceed twelve (12).
(b) A vacancy resulting from the removal of a director by
the stockholders as provided in Article II, Section 2.3 below may be
filled at a special meeting of the stockholders held for that purpose.
All directors shall hold office until the expiration of the term for
which elected and until their respective successors are elected, except
in the case of the death, resignation or removal of any director.
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Section 2.2. Vacancies and Newly Created Directorships.
Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation, retirement,
disqualification or other cause (other than removal from office by a
vote of the stockholders) may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so
chosen shall hold office for a term expiring at the next annual meeting
of stockholders at which the term of office of the class to which they
have been elected expires. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
Section 2.3. Removal. Subject to the rights of holders of
any series of Preferred Stock then outstanding, any directors, or the
entire Board of Directors, may be removed from office at any time, with
or without cause, but only by the affirmative vote of the holders of at
least a majority of the voting power of all of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors, voting together as a single class. Vacancies
in the Board of Directors resulting from such removal may be filled by a
majority of the directors then in office, though less than a quorum, or
by the stockholders as provided in Article II, Section 2.1(b) above.
Directors so chosen shall hold office until the next annual meeting of
stockholders.
Section 2.4. Regular Meetings. Regular meetings of the
Board of Directors shall be held at such place or places, on such date
or dates, and at such time or times as shall have been established by
the Board of Directors and publicized among all directors. A notice of
each regular meeting shall not be required.
Section 2.5. Special Meetings. Special meetings of the
Board of Directors may be called by one-third of the directors then in
office (rounded up to the nearest whole number) or by the chief
executive officer and shall be held at such place, on such date, and at
such time as they or he or she shall fix.
Section 2.6. Quorum; Required Approvals. At any meeting of
the Board of Directors, one third of the total number of authorized
directors shall constitute a quorum for all purposes. If a quorum shall
fail to attend any meeting, a majority of those present may adjourn the
meeting to another place, date, or time, without further notice or
waiver thereof. If a quorum is present, the affirmative vote of a
majority of the directors attending the meeting and entitled to vote
shall be the act of the Board of Directors.
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Section 2.7. Participation in Meetings by Conference
Telephone. Members of the Board of Directors, or of any committee
thereof, may participate in a meeting of such Board or committee by
means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each
other and such participation shall constitute presence in person at such
meeting.
Section 2.8. Conduct of Business. At any meeting of the
Board of Directors, business shall be transacted in such order and
manner as the Board may from time to time determine, and all matters
shall be determined by the vote of a majority of the directors present,
except as otherwise provided herein or required by law. Action may be
taken by the Board of Directors without a meeting if all members thereof
consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board of Directors.
Section 2.9. Powers. Subject to Section 2.6 of Article II
of these Bylaws, the Board of Directors may, except as otherwise
required by law, exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, including,
without limiting the generality of the foregoing, the unqualified power:
(a) To declare dividends from time to time in accordance
with law;
(b) To purchase or otherwise acquire any property, rights
or privileges on such terms as it shall determine;
(c) To authorize the creation, making and issuance, in
such form as it may determine, of written obligations of every kind,
negotiable or non-negotiable, secured or unsecured, and to do all things
necessary in connection therewith;
(d) To remove any officer of the Corporation with or
without cause, and from time to time to devolve the powers and duties of
any officer upon any other person for the time being;
(e) To confer upon any officer of the Corporation the
power to appoint, remove and suspend subordinate officers, employees and
agents;
(f) To adopt from time to time such stock, option, stock
purchase, bonus or other compensation plans for directors, officers,
employees and agents of the Corporation and its subsidiaries as it may
determine;
(g) To adopt from time to time such insurance, retirement,
and other benefit plans for directors, officers, employees and agents of
the Corporation and its subsidiaries as it may determine; and
(h) To adopt from time to time regulations, not
inconsistent with these Bylaws, for the management of the Corporation's
business and affairs.
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Section 2.10 Compensation of Directors. Directors, as
such, may receive, pursuant to resolution of the Board of Directors,
fixed fees and other compensation for their services as directors,
including, without limitation, their services as members of committees
of the Board of Directors.
Section 2.11. Nomination of Director Candidates. Subject
to the rights of holders of any class or series of Preferred Stock then
outstanding, nominations for the election of directors may be made by
the Board of Directors. Nominations for the election of directors may
also be made by any stockholder entitled to vote in the election of
directors generally. However, any stockholder entitled to vote in the
election of directors generally may nominate one or more persons for
election as directors at a meeting only if timely notice of such
stockholder's intent to make such nomination or nominations has been
given in writing to the Secretary of the Corporation. To be timely, a
stockholder's nomination for a director to be elected at an annual
meeting shall be received at the Corporation's principal executive
offices not less than 120 calendar days in advance of the date that the
Corporation's (or the Corporation's Predecessor's) proxy statement was
released to stockholders in connection with the previous year's annual
meeting of stockholders, except that if no annual meeting was held in
the previous year or the date of the annual meeting has been changed by
more than 30 calendar days from the date contemplated at the time of the
previous year's proxy statement, or in the event of a nomination for
director to be elected at a special meeting, notice by the stockholders
to be timely must be received not later than the close of business on
the tenth day following the day on which such notice of the date of the
meeting was mailed or such public disclosure was made. Each such notice
shall set forth: (a) the name and address of the stockholder who intends
to make the nomination and of the person or persons to be nominated; (b)
a representation that the stockholder is a holder of record of stock of
the Corporation entitled to vote for the election of directors on the
date of such notice and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations
are to be made by the stockholder; (d) such other information regarding
each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (e) the consent
of each nominee to serve as a director of the Corporation if so elected.
In the event that a person is validly designated as a
nominee in accordance with this Section 2.11 and shall thereafter become
unable or unwilling to stand for election to the Board of Directors, the
Board of Directors or the stockholder who proposed such nominee, as the
case may be, may designate a substitute nominee upon delivery, not fewer
than five days prior to the date of the meeting for the election of such
nominee, of a written notice to the Secretary setting forth such
information regarding such substitute nominee as would have been
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required to be delivered to the Secretary pursuant to this Section 2.11
had such substitute nominee been initially proposed as a nominee. Such
notice shall include a signed consent to serve as a director of the
Corporation, if elected, of each such substitute nominee.
If the chairman of the meeting for the election of
directors determines that a nomination of any candidate for election as
a director at such meeting was not made in accordance with the
applicable provisions of this Section 2.11, such nomination shall be
void; provided, however, that nothing in this Section 2.11 shall be
deemed to limit any voting rights upon the occurrence of dividend
arrearages provided to holders of Preferred Stock pursuant to the
Preferred Stock designation for any series of Preferred Stock.
ARTICLE III
COMMITTEES
Section 3.1. Committees of the Board of Directors. The
Board of Directors, by a vote of a majority of the whole Board, may from
time to time designate committees of the Board, with such lawfully
delegable powers and duties as it thereby confers, to serve at the
pleasure of the Board and shall, for those committees and any others
provided for herein, elect a director or directors to serve as the
member or members, designating, if it desires, other directors as
alternate members who may replace any absent or disqualified member at
any meeting of the committee. Any committee so designated may exercise
the power and authority of the Board of Directors to declare a dividend,
to authorize the issuance of stock or to adopt a certificate of
ownership and merger pursuant to Section 253 of the Delaware General
Corporation Law if the resolution which designates the committee or a
supplemental resolution of the Board of Directors shall so provide. In
the absence or disqualification of any member of any committee and any
alternate member in his place, the member or members of the committee
present at the meeting and not disqualified from voting, whether or not
he or she or they constitute a quorum, may by unanimous vote appoint
another member of the Board of Directors to act at the meeting in the
place of the absent or disqualified member.
Section 3.2. Conduct of Business. Each committee may
determine the procedural rules for meeting and conducting its business
and shall act in accordance therewith, except as otherwise provided
herein or required by law. Adequate provision shall be made for notice
to members of all meetings; one-third of the authorized members shall
constitute a quorum unless the committee shall
consist of one or two members, in which event one member shall
constitute a quorum; and all matters shall be determined by a majority
vote of the members present. Action may be taken by any committee
without a meeting if all members thereof consent thereto in writing,
and the writing or writings are filed with the minutes of the
proceedings of such committee.
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ARTICLE IV
OFFICERS
Section 4.1. Generally. The officers of the Corporation
shall be a Chairman of the Board, a President, a Vice President, a
Secretary, and a Treasurer, who shall be the Chief Financial Officer of
the Corporation. The Corporation may also have, at the discretion of the
Board of Directors, one or more additional Vice Presidents, one or more
Assistant Secretaries, and such other officers as may be appointed in
accordance with the provisions of Section 4.8 below. One person may hold
two or more offices.
Section 4.2. Chairman of the Board. The Chairman of the
Board shall, if present, preside at all meetings of the Board of
Directors, and exercise and perform such other powers and duties as may
be from time to time assigned by the Board of Directors or prescribed by
these Bylaws.
Section 4.3. President. The President shall be the chief
executive officer ("CEO") of the Corporation. Subject to the provisions
of these Bylaws and to the direction of the Board of Directors, the CEO
shall have the responsibility for the general management and control of
the business and affairs of the Corporation and shall perform all duties
and have all powers which are usually vested in the office of president
of a corporation. The CEO shall have the general supervision and
direction of all of the other officers, employees and agents of the
Corporation, and shall have such other powers and duties as may be
delegated by the Board of Directors or these Bylaws.
Section 4.4. Vice President. In the absence or disability
of the President, the Vice Presidents in order of their rank as fixed by
the Board of Directors, or if not ranked, the Vice President designated
by the Board of Directors, shall perform the duties of the President,
and when so acting shall have all the powers of, and be subject to all
the restrictions upon, the President. The Vice Presidents shall have
such other powers and perform such other duties as from time to time may
be prescribed for them respectively by the Board of Directors or these
Bylaws.
Section 4.5. Treasurer and Chief Financial Officer. The
Treasurer and Chief Financial Officer shall keep and maintain, or cause
to be kept and maintained, adequate and correct books and records of
account in written form or any other form capable of being converted
into written form.
The Treasurer and Chief Financial Officer shall deposit
all monies and other valuables in the name and to the credit of the
Corporation with such depositaries as may be designated by the Board of
Directors. He shall disburse all funds of the Corporation as may be
ordered by the Board of Directors, shall render to the President and
directors, whenever they request it, an account of all of his
transactions as Treasurer and Chief Financial Officer and of the
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financial condition of the Corporation, and shall have such other powers
and perform such other duties as may be prescribed by the Board of
Directors or by these Bylaws.
Section 4.6. Secretary. The Secretary shall keep, or cause
to be kept, a book of minutes in written form of the proceedings of the
Board of Directors, committees of the Board, and stockholders. Such
minutes shall include all waivers of notice, consents to the holding of
meetings, or approvals of the minutes of meetings executed pursuant to
these Bylaws or the Delaware General Corporation Law. The Secretary
shall keep, or cause to be kept at the principal executive office or at
the office of the Corporation's transfer agent or registrar, a record of
its stockholders, giving the names and addresses of all stockholders and
the number and class of shares held by each.
The Secretary shall give or cause to be given, notice of
all meetings of the stockholders and of the Board of Directors required
by these Bylaws or by law to be given, and shall keep the seal of the
Corporation in safe custody, and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors
or these Bylaws.
Section 4.7. Assistant Secretary. The Assistant
Secretary shall have all the powers, and perform all the duties of, the
Secretary in the absence or inability of the Secretary to act.
Section 4.8. Subordinate Officers, etc. The Board of
Directors may appoint such other officers as the business of the
Corporation may require, each of whom shall hold office for such period,
have such authority and perform such duties as are provided in these
Bylaws or as the Board of Directors may from time to time determine.
Section 4.9. Delegation of Authority. The Board of
Directors may from time to time delegate the powers or duties of any
officer to any other officers or agents, notwithstanding any provision
hereof.
Section 4.10. Removal. Any officer of the Corporation may
be removed at any time, with or without cause, by the Board of
Directors.
Section 4.11. Action With Respect to Securities of Other
Corporations. Unless otherwise directed by the Board of Directors, the
Chairman of the Board, the President or any officer of the Corporation
authorized by either the Chairman of the Board or the President shall
have power to vote and otherwise act on behalf of the Corporation, in
person or by proxy, at any meeting of stockholders of or with respect to
any action of stockholders of any other corporation in which this
Corporation may hold securities and otherwise to exercise any and all
rights and powers which this Corporation may possess by reason of its
ownership of securities in such other corporation.
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ARTICLE V
STOCK
Section 5.1. Certificates of Stock. Each stockholder shall
be entitled to a certificate signed by, or in the name of the
Corporation by, the Chairman of the Board, the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer, certifying the number of shares
owned by him or her. Any of or all the signatures on the certificate may
be facsimile.
Section 5.2. Transfers of Stock. Transfers of stock shall
be made only upon the transfer books of the Corporation kept at an
office of the Corporation or by transfer agents designated to transfer
shares of the stock of the Corporation. Except where a certificate is
issued in accordance with Section 5.4 of Article V of these Bylaws, an
outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued
therefor.
Section 5.3. Record Date. The Board of Directors may fix a
record date, which shall not be more than sixty (60) nor fewer than ten
(10) days before the date of any meeting of stockholders, nor more than
sixty (60) days prior to the time for the other action hereinafter
described, as of which there shall be determined the stockholders who
are entitled: to notice of or to vote at any meeting of stockholders or
any adjournment thereof; to receive payment of any dividend or other
distribution or allotment of any rights; or to exercise any rights with
respect to any change, conversion or exchange of stock or with respect
to any other lawful action.
Section 5.4. Lost, Stolen or Destroyed Certificates. In
the event of the loss, theft or destruction of any certificate of stock,
another may be issued in its place pursuant to such regulations as the
Board of Directors may establish concerning proof of such loss, theft or
destruction and concerning the giving of a satisfactory bond or bonds of
indemnity.
Section 5.5. Regulations. The issue, transfer, conversion
and registration of certificates of stock shall be governed by such
other regulations as the Board of Directors may establish.
ARTICLE VI
NOTICES
Section 6.1. Notices. Except as otherwise specifically
provided herein or required by law, all notices required to be given to
any stockholder, director, officer, employee or agent shall be in
writing and may in every instance be effectively given by hand delivery
to the recipient thereof, by depositing such notice in the mails,
postage paid, or by sending such notice by prepaid telegram, mailgram,
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telecopy or commercial courier service. Any such notice shall be
addressed to such stockholder, director, officer, employee or agent at
his or her last known address as the same appears on the books of the
Corporation. The time when such notice shall be deemed to be given shall
be the time such notice is received by such stockholder, director,
officer, employee or agent, or by any person accepting such notice on
behalf of such person, if hand delivered, or the time such notice is
dispatched, if delivered through the mails or by telegram or mailgram.
Notice of the place, date, and time of special meetings of the Board of
Directors shall be given each director by whom it is not waived by
mailing written notice not fewer than five (5) days before the meeting
or by telegraphing or personally delivering the same not fewer than
twenty-four (24) hours before the meeting. Unless otherwise indicated in
the notice thereof, any and all business may be transacted at a special
meeting.
Section 6.2. Waivers. A written waiver of any notice,
signed by a stockholder, director, officer, employee or agent, whether
before or after the time of the event for which notice is to be given,
shall be deemed equivalent to the notice required to be given to such
stockholder, director, officer, employee or agent. Neither the business
nor the purpose of any meeting need be specified in such a waiver.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Facsimile Signatures. In addition to the
provisions for use of facsimile signatures elsewhere specifically
authorized in these Bylaws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by
the Board of Directors or a committee thereof.
Section 7.2. Corporate Seal. The Board of Directors may
provide a suitable seal, containing the name of the Corporation, which
seal shall be in the charge of the Secretary. If and when so directed by
the Board of Directors or a committee thereof, duplicates of the seal
may be kept and used by the Treasurer or by an Assistant Secretary or
Assistant Treasurer.
Section 7.3. Reliance Upon Books, Reports and Records.
Each director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall, in the performance
of his duties, be fully protected in relying in good faith upon the
books of account or other records of the Corporation, including reports
made to the Corporation by any of its officers, by an independent
certified public accountant, or by an appraiser selected with reasonable
care.
Section 7.4. Fiscal Year. The fiscal year of the
Corporation shall be as fixed by the Board of Directors.
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Section 7.5. Time Periods. In applying any provision of
these Bylaws which require that an act be done or not done a specified
number of days prior to an event or that an act be done during a period
of a specified number of days prior to an event, calendar days shall be
used, the day of the doing of the act shall be excluded, and the day of
the event shall be included.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.1. Right to Indemnification. Each person who was
or is made a party or is threatened to be made a party to or is involved
in any action, suit or proceeding, whether civil, criminal,
administrative or investigative ("proceeding"), by reason of the fact
that he or she or a person of whom he or she is the legal
representative, is or was a director, officer or employee of the
Corporation or is or was serving at the request of the Corporation as a
director, officer or employee of another corporation, or of a
partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a director,
officer or employee or in any other capacity while serving as a
director, officer or employee, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by Delaware Law, as the
same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said Law
permitted the Corporation to provide prior to such amendment) against
all expenses, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties, amounts paid or to be paid in
settlement and amounts expended in seeking indemnification granted to
such person under applicable law, this bylaw or any agreement with the
Corporation) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer or employee and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in Section 8.2 of this
Article VIII, the Corporation shall indemnify any such person seeking
indemnity in connection with an action, suit or proceeding (or part
thereof) initiated by such person only if (a) such indemnification is
expressly required to be made by law, (b) the action, suit or proceeding
(or part thereof) was authorized by the Board of Directors of the
Corporation, (c) such indemnification is provided by the Corporation, in
its sole discretion, pursuant to the powers vested in the Corporation
under the Delaware General Corporation Law, or (d) the action, suit or
proceeding (or part thereof) is brought to establish or enforce a right
to indemnification under an indemnity agreement or any other statute or
law or otherwise as required under Section 145 of the Delaware General
Corporation Law. Such right shall be a contract right and shall include
the right to be paid by the Corporation expenses incurred in defending
any such proceeding in advance of its final disposition; provided,
however, that, unless the Delaware General Corporation Law then so
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prohibits, the payment of such expenses incurred by a director or
officer of the Corporation in his or her capacity as a director or
officer (and not in any other capacity in which service was or is
tendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of such proceeding, shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it should be determined
ultimately that such director or officer is not entitled to be
indemnified under this Section or otherwise.
Section 8.2. Right of Claimant to Bring Suit. If a claim
under Section 8.1 of this Article VIII is not paid in full by the
Corporation within ninety (90) days after a written claim has been
received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the
claim and, if such suit is not frivolous or brought in bad faith, the
claimant shall be entitled to be paid also the expense of prosecuting
such claim. The burden of proving such claim shall be on the claimant.
It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if any,
has been tendered to this Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant
for the amount claimed. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that claimant has not met the applicable
standard of conduct.
Section 8.3. Non-Exclusivity of Rights. The rights
conferred on any person in Sections 8.1 and 8.2 of this Article VIII
shall not be exclusive of any other right which such persons may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 8.4. Indemnification Contracts. The Board of
Directors is authorized to enter into a contract with any director,
officer, employee or agent of the Corporation, or any person serving at
the request of the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, including employee benefit plans, providing for
indemnification rights equivalent to or, if the Board of Directors so
determines, greater than, those provided for in this Article VIII.
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Section 8.5. Insurance. The Corporation shall maintain
insurance to the extent reasonably available, at its expense, to protect
itself and any such director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such expense, liability or loss, whether or
not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General
Corporation Law.
Section 8.6. Effect of Amendment. Any amendment, repeal or
modification of any provision of this Article VIII by the stockholders
and the directors of the Corporation shall not adversely affect any
right or protection of a director or officer of the Corporation existing
at the time of such amendment, repeal or modification.
ARTICLE IX
AMENDMENTS
Section 9.1. Amendment of Bylaws. Subject to Section C,
subsection 6(b) of Article FOURTH of the Certificate of Incorporation
and Article II, Section 2.6 hereof, the Board of Directors is expressly
empowered to adopt, amend or repeal Bylaws of the Corporation. Subject
to Section C, subsection 6(b) of Article FOURTH of the Certificate of
Incorporation and Article II, Section 2.6 hereof, any adoption,
amendment or repeal of Bylaws of the Corporation by the Board of
Directors shall require the approval of a majority of the total number
of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any resolution providing
for adoption, amendment or repeal is presented to the Board). The
stockholders shall also have power to adopt, amend or repeal the Bylaws
of the Corporation. Any adoption, amendment or repeal of Bylaws of the
Corporation by the stockholders shall require, in addition to any vote
of the holders of any class or series of stock of the Corporation
required by law or by this Certificate of Incorporation, the affirmative
vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then outstanding shares of
the capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
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Secretary's Certificate of Adoption of Amended and Restated
Bylaws
I hereby certify that I am the duly elected and acting
Secretary of General Magic, Inc., a Delaware corporation (the
"Corporation"), and that the foregoing Amended and Restated Bylaws,
comprising fifteen (15) pages, constitute the Amended and Restated
Bylaws of the Corporation as duly adopted on October 16, 1997, by the
Board of Directors of the Corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name on
August 18, 1997.
/s/ MARY E. DOYLE
-------------------------
Mary E. Doyle, Secretary
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EXHIBIT 5
[Letterhead of GRAY CARY WARE & FREIDENRICH LLP]
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL: (650) 328-6561
FAX: (650) 327-3699
http://www.gcwf.com
February 5, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: General Magic, Inc.
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 280,000 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the Individual Restricted Stock Grant Agreement (the "Agreement").
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 280,000 shares
of Common Stock which may be issued pursuant to the Agreement are duly
authorized shares of the Company's Common Stock, and, when issued in accordance
with the provisions of the Agreement, will be validly issued, fully paid and
non-assessable. 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 LLP
<PAGE> 1
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 related to the Individual Restricted Stock Grant Agreement 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
KPMG PEAT MARWICK LLP
San Jose, California
February 4, 1998
11
