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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GENERAL MAGIC, INC.
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(Exact name of registrant as specified in its charter)
Delaware 77-0250147
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
420 N. Mary Avenue
Sunnyvale, CA 94086
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(Address of principal executive offices) (Zip code)
GENERAL MAGIC, INC.
2000 STOCK OPTION PLAN
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(Full title of the plan)
Steven Markman
President, Chief Executive Officer and Chairman of the Board of Directors
General Magic, Inc.
420 N. 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
Proposed maximum
Amount to maximum aggregate Amount of
Title of Securities to be be offering price offering registration
registered registered per share(1) price(1) fee
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Common Stock, 2,550,000 $6.56 $16,728,000 $4,416.19
Par Value $0.001 to be
issued under the General
Magic, Inc. 2000 Stock
Option Plan
TOTALS 2,550,000 $6.56 $16,728,000 $4,416.19
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(1) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act") solely for purposes of calculating the
registration fee. The computation is based upon the average of the high and low
prices of the Common Stock on July 21, 2000, as reported on the Nasdaq National
Market.
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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/A 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 1999 as filed with the Securities and
Exchange Commission on April 28, 2000.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the document
referred to in (a) above.
(c) The description of the Company's Common Stock to be offered
hereby 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
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents and in agreements with its
directors and officers provisions expanding the scope of indemnification beyond
that specifically provided by the Delaware law. The Company's Bylaws provide
that the Company 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 Company or any predecessor of the Company or serves or served
any other enterprise as a director, officer or employee at the request of the
Company or a predecessor of the Company. The Company's Bylaws also provide that
the Company may enter into one or more agreements with any person which provides
for
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indemnification greater or different than that provided in such Bylaws. The
Company has entered into such indemnification agreements with its directors and
officers.
The Company 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 forth in response to Item 9 herein.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(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; and
(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 (1)(i) and (l)(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 with or furnished to the
Commission 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.
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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.
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 July 25,
2000.
General Magic, Inc.
By: /s/ STEVEN MARKMAN
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Steven Markman
President, Chief Executive Officer and
Chairman of the Board of Directors
SIGNATURES AND POWER OF ATTORNEY
The officers and directors of General Magic, Inc. whose signatures
appear below, hereby constitute and appoint Steven Markman their true and lawful
attorney and agent, with full power of substitution, 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 said attorney and agent, or his substitute(s), 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 and on the dates indicated.
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Signature Title Date
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President, Chief Executive Officer,
/s/ STEVEN MARKMAN Chairman of the Board and Director July 25, 2000
--------------------------------- (Principal Executive Officer)
Steven Markman
Chief Financial Officer
/s/ ROSE M. MARCARIO (Principal Financial and July 25, 2000
--------------------------------- Accounting Officer)
Rose M. Marcario
/s/ ELIZABETH A. FETTER Director July 25, 2000
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Elizabeth A. Fetter
/s/ CHESTER A. HUBER, JR. Director July 25, 2000
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Chester A. Huber, Jr.
/s/ PHILIP D. KNELL Director July 25, 2000
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Philip D. Knell
/s/ TOM D. SEIP Director July 25, 2000
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Tom D. Seip
/s/ SUSAN G. SWENSON Director July 25, 2000
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Susan G. Swenson
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EXHIBIT INDEX
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4.1 Certificate of Incorporation of the Company dated March 14, 1994, 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 dated January 30, 1995, 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
dated January 30, 1995, 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 dated February 24, 1995, is incorporated by reference to
Exhibit 4.3 to 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 dated February 24, 1995,
is incorporated by reference to Exhibit 4.5 to the Company's
Registration Statement on Form S-8 filed with the Securities and
Exchange Commission on August 11, 1997 (File No. 333-33329)
4.6 Certificate of Designation of Series A Convertible Preferred Stock of
the Company dated February 26, 1998, is incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form S-3 filed
with the Securities and Exchange Commission on May 1, 1998 (File No.
333-51685)
4.7 Certificate of Designation of the 5 1/2% Cumulative Convertible Series
B Preferred Stock of the Company dated March 3, 1998, is incorporated
by reference to Exhibit 3.1 to the Company's Registration Statement on
Form S-3 filed with the Securities and Exchange Commission on May 1,
1998 (File No. 333-51685)
4.8 Certificate of Merger of Netphonic Communications, Inc. into the
Company dated March 6, 1998, is incorporated by reference to Exhibit
4.7 to the Company's Registration Statement on Form S-8 filed with the
Securities and Exchange Commission on February 4, 1999 (File No.
333-71781)
4.9 Certificate of Designations, Preferences and Rights of Series C
Convertible Preferred Stock of the Company dated June 24, 1998, is
incorporated by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K filed with the Securities and Exchange Commission on
June 29, 1998 (File No. 000-25374)
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4.10 Certificate of Amendment to Certificate of Incorporation of the Company
dated January 21, 1999, is incorporated by reference to Exhibit 4.10 to
the Company's Registration Statement on Form S-8 filed with the
Securities and Exchange Commission on February 4, 1999 (File No.
333-71781)
4.11 Certificate of Amendment of Certificate of Designations, Preferences
and Rights of Series C Convertible Preferred Stock of the Company dated
January 21, 1999, is incorporated by reference to Exhibit 4.11 to the
Company's Registration Statement on Form S-8 filed with the Securities
and Exchange Commission on February 4, 1999 (File No. 333-71781)
4.12 Certificate of Designations, Preferences and Rights of Series D
Convertible Preferred Stock of the Company dated March 30, 1999, is
incorporated by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K filed with the Securities and Exchange Commission on
April 2, 1999 (File No. 000-25374)
4.13 Certificate of Designations, Preferences and Rights of Series E
Convertible Preferred Stock of the Company dated June 17, 1999, is
incorporated by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-3 filed with the Securities and Exchange Commission
on July 16, 1999 (File No. 333-83075)
4.14 Certificate of Designations, Preferences and Rights of Series F
Convertible Preferred Stock of the Company dated September 9, 1999, is
incorporated by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K filed with the Securities and Exchange Commission on
September 10, 1999 (File No. 000-25374)
4.15 Certificate of Designations, Preferences and Rights of Series G
Convertible Preferred Stock of the Company dated December 7, 1999, is
incorporated by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K filed with the Securities and Exchange Commission on
February 2, 2000 (File No. 000-25374)
4.16 Certificate of Designations, Preferences and Rights of Series H
Convertible Preferred Stock of the Company dated March 29, 2000, is
incorporated by reference to Exhibit 4.3 to the Company's Current
Report on Form 8-K filed with the Securities and Exchange Commission on
March 31, 2000 (File No. 000-25374)
4.17 Certificate of Amendment to Certificate of Incorporation dated June 23,
2000, is incorporated by reference to Appendix A to the Company's
Definitive (14A) Proxy Statement filed with the Securities and Exchange
Commission on May 12, 2000 (File No. 000-25374)
4.18 General Magic, Inc. 2000 Stock Option Plan adopted April 14, 2000 and
approved by the Company's Stockholders on June 22, 2000 is incorporated
by reference to Appendix B to the Company's Definitive (14A) Proxy
Statement filed with the Securities and Exchange Commission on May 12,
2000 (File No. 000-25374)
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4.19 Second Amended and Restated Bylaws of the Company are incorporated by
reference to Exhibit 4.6 to the Company's Registration Statement on
Form S-8 filed with the Securities and Exchange Commission on February
6, 1998 (File No. 333-45751)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Independent Auditors
24 Power of Attorney (included in signature pages to this registration
statement)
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