<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 18, 1998
REGISTRATION NO. 333-59723
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
GENERAL MAGIC, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7372 77-0250147
(State or other jurisdiction of (Primary Standard Industrial (IRS Employer
incorporation or organization) Classification Number) Identification No.)
</TABLE>
420 NORTH MARY AVENUE
SUNNYVALE, CALIFORNIA 94086
(408) 774-4000
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
------------------------
STEVEN MARKMAN
PRESIDENT, CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD OF DIRECTORS
GENERAL MAGIC, INC.
420 NORTH MARY AVENUE
SUNNYVALE, CALIFORNIA 94086
(408) 774-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
JAMES M. KOSHLAND, ESQ.
Gray Cary Ware & Freidenrich LLP
400 Hamilton Avenue
Palo Alto, California 94301-1825
(650) 328-6561
================================================================================
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time as described in the Prospectus after the effective date of this
Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
Title of Each Class of AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE
Securities to be Registered REGISTERED PER SHARE PRICE
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($0.001 par 5,383,459 shares (1) $11.88 (2) $63,955,490.47 $18,866.87
value)
- -------------------------------------------------------------------------------------------------------------------
Common Stock ($0.001 par 225,000 shares (3) $17.22 (4) $3,874,500 $1,142.98
value)
- -------------------------------------------------------------------------------------------------------------------
TOTAL 5,608,459 shares $67,829,990.47 $20,009.85
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents 200% of the shares of Common Stock issuable upon conversion of
all issued shares of Series C Convertible Preferred Stock as described in
the Prospectus, assuming that such conversion is as of July 23, 1998.
Pursuant to Rule 416 promulgated under the Securities Act, this
Registration Statement also covers such indeterminable number of additional
shares as may become issuable upon conversion of Series C Convertible
Preferred Stock (i) to prevent dilution resulting from stock splits, stock
dividends or similar transactions, and (ii) if permitted by law, by reason
of changes in the conversion price or conversion rate of the Series C
Convertible Preferred Stock in accordance with the terms of the Certificate
of Designations, Preferences and Rights of the Series C Convertible
Preferred Stock.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c) of the 1933 Act and based on the average of the high and low
sales prices of the Common Stock of General Magic, Inc. reported on the
Nasdaq National Market on July 16, 1998.
(3) Represents 150% of the shares of Common Stock issued or issuable upon
exercise of warrants issued as described in the Prospectus. Pursuant to
Rule 416 of the Securities Act, this Registration Statement also covers
such indeterminable additional shares of Common Stock as may become
issuable upon exercise of warrants (i) to prevent dilution as a result of
any future stock split, stock dividends or similar transactions, and (ii)
if permitted by law, by reason of changes in the number of shares issuable
upon exercise of the warrants in accordance with the terms of the warrants.
(4) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(g)(1) of the Securities Act.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
EXPLANATORY NOTE
This Amendment No. 1 to registration statement is being filed solely for
purposes of revising the filing fee information on the cover page.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses in connection
with the sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimates
except the Securities and Exchange Commission registration fees and Nasdaq
filing fee.
<TABLE>
<CAPTION>
To be Paid
By The
Registrant
----------
<S> <C>
SEC Registration Fee $ 20,010*
Nasdaq filing fee $ 17,500
Accounting fees and expenses $ 5,000
Legal fees and expenses $ 60,000
Miscellaneous expenses $ 2,490
Total............................................. $105,000
=======
</TABLE>
* The Company will pay all expenses of registration, issuance and
distribution of the Shares being sold by the Selling Stockholders,
excluding underwriting commissions and similar charges. $19,656 was
previously paid in connection with registration number 333-59723, filed on
July 23, 1998.
- -------------------------------------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Bylaws provide that the Registrant shall indemnify to
the full extent authorized by law any person made or threatened to be made a
party to an action or a proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he or she, his or her testator or
intestate was or is a director, officer or employee of the Registrant or any
predecessor of the Registrant or serves or served any other enterprise as a
director, officer or employee at the request of the Registrant or a predecessor
of the Registrant. The Registrant's Bylaws also provide that the Registrant may
enter into one or more agreements with any person which provides for
indemnification greater or different than that provided in such Bylaws.
The Registrant has entered into indemnification agreements with its
directors and its officers.
The Registrant maintains insurance on behalf of any person who is a
director or officer against any loss arising from any claim asserted against him
or her and incurred by him or her in any such capacity, subject to certain
exclusions.
See also the undertakings set out in response to Item 17 herein.
II-1
<PAGE> 4
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- -------------------------------------------------------------------------------------------------
<S> <C>
3.1 (1) Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock filed
with the Delaware Secretary of State on June 25, 1998.
4.1 (1) Securities Purchase Agreement by and among Registrant and the Institutional Investors dated June
24, 1998.
4.2 (1) Registration Rights Agreement by and among Registrant and the Institutional Investors dated
June 24, 1998.
4.3 (1) Form of Warrant
5.1 (2) Opinion of Gray Cary Ware & Freidenrich LLP.
23.1 (2) Consent of KPMG Peat Marwick LLP, independent auditors.
23.2 (2) Consent of Gray Cary Ware & Freidenrich LLP (included in Exhibit 5.1).
24.1 (2) Power of Attorney (included in the Signature Page contained in Part II of the Registration
Statement).
</TABLE>
(1) Incorporated by reference from the Company's Report on Form 8-K, filed with
the Commission on June 29, 1998.
(2) Previously filed.
II-2
<PAGE> 5
- --------------------------
ITEM 17. UNDERTAKINGS.
A. 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 (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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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. 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
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
D. 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 Securities Act
and is, therefore, unenforceable. In the event that a claim for
II-3
<PAGE> 6
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 Securities
Act and will be governed by the final adjudication of such issue.
E. The undersigned Registrant hereby undertakes that:
(1) For the purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of the registration
statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
II-4
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Sunnyvale, State of California on September 18,
1998.
GENERAL MAGIC, INC.
By: /s/ STEVEN MARKMAN
----------------------------------------
Steven Markman
President, Chief Executive Officer
and Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ STEVEN MARKMAN President, Chief Executive Officer, Chairman September 18, 1998
- ------------------------------------------- of the Board, Director (Principal Executive
Steven Markman Officer)
/s/ JAMES P. McCORMICK Chief Financial Officer (Principal Financial September 18, 1998
- ------------------------------------------- and Accounting Officer)
James P. McCormick*
/s/ MICHAEL E. KALOGRIS Director September 18, 1998
- -------------------------------------------
Michael E. Kalogris*
/s/ CARL F. PASCARELLA Director September 18, 1998
- -------------------------------------------
Carl F. Pascarella*
/s/ ROEL PIEPER Director September 18, 1998
- -------------------------------------------
Roel Pieper*
/s/ DENNIS F. STRIGL Director September 18, 1998
- -------------------------------------------
Dennis F. Strigl*
/s/ SUSAN G. SWENSON Director September 18, 1998
- -------------------------------------------
Susan G. Swenson*
/s/ PHILIP D. KNELL Director September 18, 1998
- -------------------------------------------
Philip D. Knell*
*By: /s/ STEVEN MARKMAN
- ------------------------------------------- September 18, 1998
Steven Markman
attorney-in-fact
</TABLE>
II-5
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- ----------------------------------------------------------------------------------------------
<S> <C>
3.1 (1) Certificate of Designations, Preferences and Rights Series C Convertible Preferred Stock filed
with the Delaware Secretary of State on June 25, 1998.
4.1 (1) Securities Purchase Agreement by and among Registrant and the Institutional Investors dated
June 24, 1998.
4.2 (1) Registration Rights Agreement by and among Registrant and the Institutional Investors dated
June 24, 1998.
4.3 (1) Form of Warrant
5.1 (2) Opinion of Gray Cary Ware & Freidenrich LLP.
23.1 (2) Consent of KPMG Peat Marwick LLP, independent auditors.
23.2 (2) Consent of Gray Cary Ware & Freidenrich LLP (included in Exhibit 5.1).
24.1 (2) Power of Attorney (included in the Signature Page contained in Part II of the Registration
Statement).
</TABLE>
(1) Incorporated by reference from the Company's Report on Form 8-K, filed with
the Commission on June 29, 1998.
(2) Previously filed.
II-6
