As filed with the Securities and Exchange Commission on May 10, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
(including registration of shares for
resale by means of a Form S-3 Prospectus)
REGISTRATION STATEMENT
Under
The Securities Act of 1933
EUPHONIX, INC.
(Exact name of Registrant as specified in its charter)
California 77-0189481
(State of incorporation) (I.R.S. Employer
Identification Number)
220 Portage Avenue
Palo Alto, California 94306
(Address, including zip code, of principal executive offices)
1999 Stock Plan
(Full Title of the Plan)
Barry Margerum
Euphonix, Inc.
220 Portage Avenue
Palo Alto, California 94306
(Name and address of agent for service)
(650) 855-0400
(Telephone number, including area code, of agent for service)
Copies to:
John V. Roos, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
<TABLE>
<CAPTION>
<S> <C> <C>
CALCULATION OF REGISTRATION FEE
===================================================================
Amount
Title of Securities to to be
be Registered Registered
========================================= =========================
Common Stock....... $0.001 par value 750,000
========================================= =========================
<C> <C> <C>
=================================================================
Proposed Maximum Proposed Maximum
Offering Price Aggregate Amount of
Per Share(1) Offering Price(2) Registration Fee
====================== ====================== ===================
$ 1.025 $ 3.586 $ 263.90
====================== ====================== ===================
</TABLE>
(1) The Proposed Maximum Offering Price Per Share was estimated in part pursuant
to Rule 457(h) under the Securities Act, and, in part, pursuant to Rule 457 (c)
under the Securities Act. With respect to 541,000 shares which are subject to
outstanding options to purchase Common Stock under the 1999 Stock Plan (the
"Plan"), the Proposed Maximum Offering Price Per Share was estimated pursuant to
Rule 457(h) under which Rule the per share price of options and stock purchase
rights to purchase stock under an employee benefit plan may be estimated by
reference to the exercise price of such options and rights. The weighted average
exercise price of the 541,000 subject to outstanding options and issued pursuant
to the exercise of stock purchase rights under the Plan is $1.025. With respect
to 124,093 shares of Common Stock available for future grant under the Plan, the
estimated Proposed Maximum Aggregate Offering Price Per Share was estimated
pursuant to Rule 457(c) whereby the per share price was determined by reference
to the average between the high and low price reported in the Nasdaq National
Market on May 5, 2000, which average was $3.586. The number referenced above in
the table entitled "Proposed Maximum Offering Price per Share" represents a
weighted average of the foregoing estimates calculated in accordance with Rules
457 (h) and 457(c).
<PAGE>
EXPLANATORY NOTE
This Registration Statement relates to (i) the resale of 84,907 shares
of Common Stock previously issued under our 1999 Stock Plan and (ii) 750,000
shares of Common Stock to be issued in the future upon the exercise of options
or the purchase of stock under our 1999 Stock Plan.
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<PAGE>
You should rely only on the information contained in or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
information different from that contained in this prospectus. Certain selling
stockholders are offering to sell Shares and seeking offers to buy Shares only
in jurisdictions where offers and sales are permitted. The information contained
in or incorporated by reference in this prospectus is accurate only as of the
date of this prospectus, regardless of the time of delivery of this prospectus
or any sale of the Shares.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file reports, proxy statements and other information with the
Commission in accordance with the Securities and Exchange Act of 1934 (the
"Exchange Act"). You may read and copy our reports, proxy statements and other
information filed by us at the public reference facilities of the Commission in
Washington, D.C., New York, New York, and Chicago, Illinois. Please call the
Commission at 1-800-SEC-0330 for further information about the public reference
rooms. Our reports, proxy statements and other information filed with the
Commission are available to the public over the Internet at the Commission's
World Wide Web site http://www/sec/gov.
This Prospectus constitutes a part of a Registration Statement on Form
S-8 (including registration of shares for resale by means of a Form S-3
Prospectus) (herein, together with all amendments and exhibits, referred to as
the "Registration Statement") filed by us with the Commission under the
Securities Act of 1933 (the "Securities Act"). This Prospectus does not contain
all of the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information with respect to us and the 84,907 shares
(the "Shares"), refer to the Registration Statement. The Registration Statement
may be inspected at the public reference facilities maintained by the Commission
at the locations set forth in the preceding paragraph. Statements contained
herein concerning any document filed as an exhibit are not necessarily complete,
and, in each instance, refer to the copy of such document filed as an exhibit to
the Registration Statement. Each such statement is qualified in its entirety by
such reference.
THE COMPANY
We develop, manufacture and support networked digital audio systems for
music, film & TV post-production, broadcast, sound reinforcement and multimedia
applications. Our core products today consist of high performance digital audio
consoles, digital-control analog audio consoles, disk-based multi-track
recorders and audio format converters. Our products are used to produce audio
content for entertainment industry markets including music and CD's, film and
television audio post-production, television and radio broadcast, concert and
theater sound reinforcement, multimedia and the Internet. We are an industry
leader in providing software-driven functionality that serves to automate and
streamline the audio production process, while providing high quality audio and
extended functionality relative to the current audio industry standards. Our
high performance audio systems play a major role in the production of popular
music, motion picture and television projects.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements under "The Company," "Risk Factors," and
elsewhere in this prospectus constitute forward-looking statements. These
statements involve known and unknown risks, uncertainties, and other factors
that may cause our or our industry's actual results, levels of activity,
performance or achievements to be materially different from any future results,
levels of activity, performance or achievements expressed or implied by these
forward-looking statements. In some cases, you can identify forward-looking
statements by terminology such as "may," "will," "should," "expects," "plans,"
"anticipates," "believes," "estimates," "predicts," "potential," "continue" or
the negative of these terms or other comparable terminology.
Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee future results,
levels of activity, performance or achievements. Moreover, neither we nor any
other person assumes responsibility for the accuracy and completeness of these
statements. We are under no duty to update any of the forward-looking statements
after the date of this prospectus to conform these statements to actual results.
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<PAGE>
PROSPECTUS
84,907 Shares
EUPHONIX, INC.
Common Stock
This Prospectus relates to 84,907 shares of the common stock of
Euphonix, Inc., which may be offered from time to time by certain selling
stockholders of the Company. We will receive no part of the proceeds from sales
of the shares. The shares were acquired by the selling stockholders under our
1999 Stock Plan.
Our common stock is listed on the Nasdaq National Market under the
symbol "EUPH". Our common stock was initially sold to the public at a price of
$8.00 per share on August 22, 1995.
See "Risk Factors" on page 5 for information that should be considered
by prospective investors.
The Securities and Exchange Commission (the "Commission") and state
securities regulators have not approved or disapproved these securities, or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The date of this Prospectus is May 10, 2000.
4
<PAGE>
INFORMATION REQUIRED IN FORM S-3 PROSPECTUS
PART I
Item 3. Risk Factors
This offering and any investment in our common stock involve a high
degree of risk. You should carefully consider the risks described below and all
of the information contained in this prospectus before deciding whether to
purchase our common stock. If any of the following risks actually occur, our
business, financial condition and results of operations could be harmed. The
trading price of our common stock could decline, and you may lose all or part of
your investment in our common stock.
Factors Affecting Future Operating Results
Because we rely on sales of our base system for a significant portion
of our revenues, factors materially affecting the base system will adversely
affect our business and operations.
Historically, we have derived virtually all of our revenues from sales
of our digitally controlled audio mixing console system, which system is based
upon our hardware platform. We believe that sales of this system, along with
enhancements thereof, and the R-1 recorder and new System 5 digital console will
continue to constitute a significant portion of our revenues. It is expected for
the foreseeable future that a greater portion of our revenue will come from the
new System 5 digital console. Accordingly, any factor adversely affecting our
base system, whether technical, competitive or otherwise, could have a material
adverse effect on our business and results of operations.
We may require obtaining additional financing to fund operations.
Our ability to fund operations through March 31, 2001 is dependent upon
achievement of our operating plan. If we do not attain our operating plan we
will obtain additional financing or cut expenses. We believe that additional
debt or equity financing will be available from existing investors and others.
However, there can be no assurance as to the terms and conditions of any such
financing and no certainty that funds would be available when needed. The
inability to obtain additional financing, if needed, would be likely to have a
material adverse effect on us. To the extent that any future financing involves
the sale of our equity securities, our then existing shareholders could be
substantially diluted.
Revenues come from a limited number of sales and are subject to
changing market factors that may result in significant fluctuations in operating
results.
A limited number of our system sales typically account for a
substantial percentage of our quarterly revenue because of the relatively high
average sales price of such systems. Moreover, our expense levels are based in
part on our expectations of future revenue. Therefore, if revenue is below
expectations, our operating results are likely to be adversely affected. In
addition, the timing of revenue is influenced by a number of other factors,
including the timing of individual orders and shipments, industry trade shows,
seasonal customer buying patterns, changes in product development and sales and
marketing expenditures, custom financing arrangements, production limitations
and international sales activity. Because our operating expenses are based on
anticipated revenue levels and a high percentage of our expenses are relatively
fixed in the short term, variations in the timing of recognition of revenue
could cause significant fluctuations in operating results from quarter to
quarter and may result in unanticipated quarterly earnings shortfalls or losses.
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If we do not successfully develop and improve new and existing
technologies and products, we could experience a decline in sales and loss of
market share.
The markets for our systems are characterized by changing technologies
and new product introductions. Our future success will depend in part upon our
continued ability to enhance our base system with features including new
software and hardware add-ons and to develop or acquire and introduce new
products and features which meet new market demands and changing customer
requirements on a timely basis. We are currently designing and developing new
products, primarily in the areas of recording, editing and mixing functions of
sound production as well as digital audio processing and networking systems. In
addition, there can be no assurance that products or technologies developed by
others will not render our products or technologies non-competitive or obsolete.
If we do not gain market share in the music market as well as other
target markets, we may not remain competitive.
Historically, our primary market success has been in the music segment
of the professional audio market. In order for us to grow, we believe that we
must continue to gain market share in the music market segment, as well as in
our other targeted market segments. There can be no assurance that we will be
able to compete favorably in all market segments. Our inability to compete
favorably could have a material adverse effect on our business and results of
operations. The markets for our products are intensely competitive and
characterized by significant price competition. We believe that our ability to
compete depends on elements both within and outside our control, including the
success and timing of new product development and introduction by us and our
competitors, product performance and price, distribution, availability of lease
or other financing alternatives, resale of used systems and customer support.
If suppliers and manufacturers do not provide timely performance, we
may not meet demand which could have an adverse effect on our business.
Currently, we use many sole or limited source suppliers, certain of
which are critical to the integrated circuits included in our base system. Major
delays or terminations in supplies of such components could have a significant
adverse effect on our timely shipment of our products, which in turn would
adversely affect our business and results of operations. We also rely on single
vendors to manufacture major subassemblies for our products. Any extended
interruption in the future supply or increase in the cost of subassemblies
manufactured by its primary or other third party vendors could have a material
adverse effect on our business and results of operations.
We may be unable to comply with changing product standards which would
negatively impact business.
In addition, as different electrical, radiation or other standards
applicable to our products are adopted in countries, including the United
States, or groups of countries in which we sell our products, our failure to
modify our products, if necessary, and to comply with such standards would
likely have an adverse effect on our business and results of operation.
6
<PAGE>
Misappropriation by others of our trademarks and other proprietary
rights could harm our reputation, affect our competitive position and cause us
to incur significant costs to defend our rights.
We generally rely on a combination of trade secret, copyright law and
trademark law, contracts and technical measures to establish and protect our
proprietary rights in our products and technologies. However, we believe that
such measures provide only limited protection of our proprietary information,
and there is no assurance that such measures will be adequate to prevent
misappropriation. In addition, significant and protracted litigation may be
necessary to protect our intellectual property rights, to determine the scope of
the proprietary rights of others or to defend against claims of infringement.
There can be no assurance that third-party claims alleging infringement will not
be asserted against us in the future. Any such claims could have a material
adverse effect on our business and results of operations.
If we lose key personnel or are unable to attract and retain additional
personnel when needed, we may not be able to successfully operate our business.
Our success depends, in part, on our ability to retain key management
and technical employees and our continued ability to attract and retain highly
skilled personnel. In addition, our ability to manage any growth will require us
to continue to improve and expand our management, operational and financial
systems and controls. If our management is unable to manage growth effectively,
our business and results of operations will be adversely affected.
There may be an adverse effect on revenues due to changes in accounting
requirements of the Commission.
The Commission staff addresses several issues in Staff Accounting
Bulletin ("SAB") No. 101, including the timing for recognizing revenue derived
from selling arrangements that involve contractual customer acceptance
provisions and installation of the product occurs after shipment and transfer of
title. Our existing revenue recognition policy is to recognize revenue at the
time the customer takes title to the product, generally at the time of shipment,
because we have routinely met our installation obligations and obtained customer
acceptance. Applying the requirements of SAB No. 101 to our present selling
arrangements for the sale of equipment may require a change in our accounting
policy for revenue recognition and the deferral of the recognition of revenue
from such equipment sales until installation is complete and accepted by the
customer. The effect of such a change, if any, must be recognized as a
cumulative effect of a change in accounting no later than our second quarter of
our fiscal year ending on December 31, 2000. At the current time it is not
possible to determine the effect this change will have on our results of
operations.
There may be significant fluctuations in operating results and our
Common Stock may be materially adversely affected by these and other risk
factors.
As a result of these and other factors, we have experienced significant
quarterly fluctuations in operating results and anticipate that these
fluctuations will continue in future periods. There can be no assurance that we
will be successful in maintaining or improving our profitability or avoiding
losses in any future period. Further, it is likely that in some future period
our net revenues or operating results will be below the expectations of public
market securities analysts and investors. In such event, the price of our Common
Stock would likely be materially adversely affected.
7
<PAGE>
Item 4. Use of Proceeds
We will not receive any of the proceeds from the sale of the Shares.
All proceeds from the sale of the Shares will be for the account of the Selling
Stockholders, as described below. See "Selling Stockholders" and "Plan of
Distribution" described below.
Item 7. Selling Stockholders
Barry L. Margerum is our Chief Executive Officer, President and a
director and he owns 26,181 shares of Common Stock. Paul L. Hammel is our Senior
Vice President of Operations, and he owns 28,667 shares of Common Stock. Scott
W. Silfvast is our Chief Product Officer and director and he owns 13,090 shares
of Common Stock. Thomas C. Fristoe, until July 1999, was our Vice President of
World Wide Sales and Marketing Communications and he owns 16,969 shares of
Common Stock. The Selling Stockholders do not beneficially own, individually or
in the aggregate, more than 1% of our outstanding Common Stock prior to this
offering. The following table shows the names of the Selling Stockholders and
the number of Shares able to be sold by them pursuant to this Prospectus:
<TABLE>
<CAPTION>
<S> <C> <C>
No. of Shares to be
Name Registered
______________________________________________ ________________
Barry L. Margerum 26,181
----------------------------------------------
Paul L. Hammel 28,667
----------------------------------------------
Scott W. Silvfast 13,090
----------------------------------------------
Thomas C. Fristoe 16,969
---------------------------------------------- -----------
TOTAL 84,907
-----------
-----------
</TABLE>
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Item 8. Plan of Distribution
The Selling Stockholders may sell all or a portion of the shares from
time to time on the Nasdaq National Market for their own accounts at prices
prevailing in the public market at the times of such sales. The Selling
Stockholders may also make private sales directly or through one or more
brokers. These brokers may act as agents or as principals. The Selling
Stockholders will pay all sales commissions and similar expenses related to the
sale of the shares. We will pay all expenses related to the registration of the
shares.
The Selling Stockholders and any broker executing selling orders on
behalf of the Selling Stockholders may be considered "an underwriter" under the
Securities Act. As a result, commissions received by a broker may be treated as
underwriting commissions under the Securities Act. Any broker-dealer
participating as an agent in that kind of transaction may receive commissions
from the selling stockholders and from any purchaser of shares.
Underwriters, dealers and agents may be entitled to indemnification by
us against certain civil liabilities, including liabilities under the Securities
Act. Underwriters, dealers and agents also may be entitled to contribution with
respect to payments made by the underwriters, dealers or agents, under
agreements between us and the underwriters, dealers and agents.
Any securities covered by this Prospectus that qualify for sale
pursuant to Rule 144 under the Securities Act may be sold under that Rule rather
than pursuant to this Prospectus. There can be no assurance that the Selling
Stockholders will sell any or all of the Shares of Common Stock offered
hereunder.
Item 10. Interests of Named Experts and Legal Matters.
The financial statements incorporated in this Prospectus by reference
to the Annual Report on Form 10-K for the year ended December 31, 1999 have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The financial statements incorporated in this Prospectus by reference
to the Annual Report on Form 10-K for the year ended December 31, 1998 have been
so incorporated in reliance on the report of Ernst & Young LLP, independent
auditors, given on the authority of said firm as experts in auditing and
accounting.
The validity of the Shares of Common Stock offered hereby will be
passed upon by Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo
Alto, California, our counsel.
Item 12. Information Incorporated by Reference
The following documents filed with the Commission are hereby
incorporated by reference in this Prospectus:
(1) Our latest annual report on Form 10-K for the fiscal year ended
December 31, 1999, pursuant to Section 13 of the Exchange Act.
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(2) Our latest quarterly report on Form 10-Q for the fiscal quarter
ended March 31, 2000, pursuant to Section 13 of the Exchange Act.
(3) The description of our Common Stock to be offered hereby is
contained in our Registration Statement on Form 8-A filed with the Commission
on July 24, 1995 pursuant to Section 12(g) of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of filing such documents.
10
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INFORMATION REQUIRED IN FORM S-8 REGISTRATION STATEMENT
PART II
Item 3. Incorporation of Documents by Reference.
The following documents and information previously filed with the
Commission by us are hereby incorporated by reference in this Registration
Statement:
(1) Our latest annual report on Form 10-K for the fiscal year ended
December 31, 1999, pursuant to Section 13 of the Exchange Act.
(2) Out latest quarterly report on Form 10-Q for the fiscal year ended
March 31, 2000, pursuant to Section 13 of the Exchange Act.
(3) The description of our Common Stock to be offered hereby is
contained in our Registration Statement on Form 8-A filed with the Securities
and Exchange Commission on July 24, 1995 pursuant to Section 12(g) of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of filing such documents.
Item 6. Indemnification of Directors and Officers.
We have adopted provisions in our Amended and Restated Articles of
Incorporation which (i) eliminate the personal liability of our directors to us
and our shareholders for monetary damages arising from a breach of their
fiduciary duties in certain circumstances; and (ii) authorize us to indemnify
our directors and officers to the fullest extent permitted by law. Such
limitation of liability does not affect the availability of equitable remedies,
such as injunctive relief or rescission. In addition, our bylaws provide that we
shall indemnity our directors and officers to the fullest extent permitted by
California law. We have entered into separate indemnification agreements with
each of our officers and directors that contain provisions which are in some
respects broader than the specific indemnification provisions contained in the
California Corporations Code. The indemnification agreements may require us,
among other things, to indemnify such officers and directors against certain
liabilities that may arise by reason of their status or service as directors or
officers (other than liabilities arising from willful misconduct of a culpable
nature), to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified, and to obtain director's and
officer's insurance, if available on reasonable terms.
Item 7. Exemption from Registration Claimed.
The 84,907 shares of Common Stock to be resold by Selling
Stockholders pursuant to the Prospectus prepared in accordance with Form S-3
were issued by us to the Selling Shareholders pursuant to an exemption from
registration under the Securities Act by virtue of Section 4(2) thereof. The
Selling Shareholders represented the Selling Shareholders intentions to acquire
the securities for investment only and not with a view to distribution thereof.
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The Selling Shareholders had access, by means of their relationship with us, to
sufficient information to make an informed decision.
Item 8. Exhibits.
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<S> <C> <C>
Exhibit
Number Description
- -------------------------- ----------------------------------------------------
4.1(1) 1999 Stock Plan
4.2(1) Form of Stock Option Agreement
4.3(1) Form of Notice of Grant of Stock Purchase Right
4.4 Form of Common Stock Equivalent Agreement
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.,
as to legality of securities being registered
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see Page 14)
</TABLE>
(1) These documents are incorporated by reference in our Form 10-K for the
fiscal year ended December 31, 1999, pursuant to Section 13 of the Exchange Act
filed with the Commission.
Item 9. Undertakings.
(a) We hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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 informa-
tion 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) We hereby undertake that, for purposes of determining any liability
under the Securities Act, each filing of our 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Securities and Exchange Commission such indemnifica-
tion is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
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<PAGE>
such liabilities (other than the payment by us of expenses incurred or paid by
a director, officer or controlling person 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, we will, unless in
the opinion of our 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, we certify
that we have reasonable grounds to believe that we meet all of the requirements
for filing on Form S-8 and have duly caused this registration statement to be
signed on our behalf by the undersigned, thereunto duly authorized, in the City
of Palo Alto, State of California, on May 10, 2000.
EUPHONIX, INC.
By: /s/BARRY L. MARGERUM
_________________________________
Barry Margerum, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Barry Margerum and Deiter Meier, 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 to perform any acts necessary in order to file such amendments, and each
of the undersigned does hereby ratify and confirm all that said attorneys and
agents, or their or his or her substitutes, shall do or cause to be done by
virtue hereof.
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>
<S> <C> <C> <C>
SIGNATURE TITLE DATE
/s/BARRY L. MARGERUM Chief Executive Officer, May 10, 2000
- --------------------------- President and Director
Barry L. Margerum (principal executive officer
and principal financial and
accounting officer)
/s/ DIETER MEIER Chairman of the Board May 10, 2000
- ---------------------------
Dieter Meier
/s/ PAUL L. HAMMEL Senior Vice President of May 10, 2000
- --------------------------- Operations
Paul L. Hammel
/s/ HARRIET N. DIETZ Controller (Principal Accounting May 10, 2000
- --------------------------- Officer)
Harriet N. Dietz
/s/ ROBERT F. KUHLING, JR Director May 10, 2000
- ---------------------------
Robert F. Kuhling, Jr.
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SIGNATURE TITLE DATE
/s/ JAMES DOBBIE Director May 10, 2000
- ---------------------------
James Dobbie
/s/ STEPHEN JACKSON Director May 10, 2000
- ---------------------------
Stephen Jackson
/s/ SCOTT W. SILFVAST Chief Product Officer and May 10, 2000
- --------------------------- Director
Scott W. Silfvast
</TABLE>
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Exhibit 4.4
EUPHONIX, INC.
1999 STOCK PLAN
COMMON STOCK EQUIVALENT AGREEMENT
This Common Stock Equivalent Agreement (the "Agreement") is made this
___ day of _______, ____, by and between Euphonix, Inc. (the "Company") and
_________________________________ (the "Recipient"). Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined meanings
herein.
NOW, THEREFORE, the parties agree as follows:
1. Award. Pursuant to this Agreement and Section 12(a) of the Plan,
The Company hereby credits a bookkeeping account in the Recipient's name (the
"Account") with ______________ Common Stock Equivalents. Each such Common Stock
Equivalent is an unfunded and unsecured promise to the Recipient, giving him
or her the right to receive in the future a share of the Company's Common
Stock.
2. Vesting. _____________of the Common Stock Equivalents subject to
this Agreement shall vest on ___________________, subject to Recipient's
continuing to be a Service Provider on such dates.
3. Conversion. On __________, _____, the Company shall deliver to the
Recipient (or to his or her designated beneficiary, executor or administrator,
in the event of his or her death) a number of Shares equal to (and rounded down
to) the whole number of Common Stock Equivalents vested pursuant to Section 2
above and credited to the Account.
4. Designation of Beneficiary; Nontransferability.
(a) Designation of Beneficiary. The Recipient shall have the
right by will to designate one or more beneficiaries to receive any Shares
deliverable pursuant to Section 2 above. If no beneficiary shall be designated
or, having been designated, shall not be living at the time delivery of the
Shares is to be made, the balance of the Shares shall be delivered to the
Recipient's executor or administrator and shall constitute part of the
Recipient's estate. If the Company determines that a person to whom Shares
are to be delivered is a minor or is mentally or physically incapable of
receiving or caring for the Shares that would otherwise be delivered to such
person, the Shares may be applied for the benefit of the person (with or without
the intervention of a guardian or committee) or, in the case of a minor, may be
delivered to a custodian for the minor under the California Uniform Transfer to
Minors Act, to the parents or a parent of the minor, to a legal guardian of the
minor, or any other person who may have the estate or custody of the minor's
person. Any such delivery shall be a complete discharge of the liabilities of
the Company under this Agreement.
(b) Nontransferability. Except as provided in subsection (a), the
rights of the Recipient under this Agreement are personal to him or her and no
right or benefit under this Agreement shall be subject to anticipation,
<PAGE>
alienation, sale, assignment, pledge or encumbrance by the Recipient or
anyone on his or her behalf and shall not be liable for the debts, contracts,
liabilities, engagements or torts of the Recipient. Neither this Agreement
nor the establishment of the Account shall create or be construed to create a
trust or asset segregation of any kind for the benefit of the Recipient to
create any form of fiduciary relationship between the Company and the
Recipient, his named beneficiary or executor or administrator, as the
relationship created by this Agreement is that of a general creditor.
5. Title and Beneficial Ownership. Title to and beneficial ownership of
all assets in the Account shall at all times remain with the Company, and
neither the Recipient nor his named beneficiary or executor or administrator
shall have any property interest whatsoever in any specific assets of the
Company.
6. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. This Agreement shall in all respects be subject to the terms,
definitions and provisions of the Plan. The Plan and this Agreement constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede in their entirety all prior undertakings and agreements of the
Company and the Recipient with respect to the subject matter hereof, and may
not be modified expect by means of a writing signed by the Company and the
Recipient. This Agreement shall be governed by California law, except for that
body of law pertaining to conflicts of laws.
THE RECIPIENT ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT
NOR THE PLAN SHALL CONFER UPON THE RECIPIENT ANY RIGHT WITH RESPECT TO
CONTINUATION OF HIS OR HER EMPLOYMENT.
By your signature and the signature of the Company's representative
below, you and the Company agree that this grant of Common Stock Equivalents is
granted under and governed by the terms and conditions of the Plan and this
Common Stock Equivalent Agreement. Recipient has reviewed the Plan and this
Common Stock Equivalent Agreement in their entirety, and has had an opportunity
to obtain the advice of counsel prior to executing this Common Stock Equivalent
Agreement and fully understands all provisions of the Plan and this Common Stock
Equivalent Agreement. Recipient hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and this Common Stock Equivalent Agreement.
RECIPIENT EUPHONIX, INC.
_______________________________________ By:______________________________
Date:__________________________________ Its:_____________________________
<PAGE>
EXHIBIT 5.1
May 10, 2000
Euphonix, Inc.
220 Portage Avenue
Palo Alto, CA 94306
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by you with the Securities and Exchange
Commission on or about May 10, 2000, in connection with the registration under
the Securities Act of 1933, as amended, of an aggregate of 750,000 shares of
your Common Stock (the "Future Issuance Shares") reserved for issuance pursuant
to your 1999 Stock Plan (the "Plan") and an aggregate of 84,907 shares
registered on behalf of certain selling stockholders listed in the Registration
Statement (the "Selling Stockholder Shares"). As your legal counsel, we have
review the actions proposed to be taken by you in connection with the issuance
and sale of the Future Issuance Shares and the Selling Stockholder Shares.
It is our opinion that the Future Issuance Shares, when issued and sold
in the manner referred to in the Plan and pursuant to the agreements which
accompany the Plan, will be legally and validly issued, fully paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any Prospectus constituting a part thereof and
any amendments thereto.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 1, 2000 relating to
the financial statements, which appear in Euphonix Inc.'s Annual Report on Form
10-K for the year ended December 31, 1999. We also consent to the reference to
us under the heading "Item 10. - Interests of Named Experts and Legal Matters"
in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
San Jose, California
May 10, 2000
<PAGE> EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Item 10. .
Interests of Named Experts and Legal Matters " in the Registration Statement
(Form S-8) pertaining to the 1999 Stock Plan of Euphonix, Inc. and to the
incorporation by reference therein of our report dated March 4, 1999, with
respect to the consolidated financial statements of Euphonix, Inc. for the two
years ended December 31, 1998 included in its Annual Report (Form 10-K) for the
year ended December 31, 1999, filed with the Securities and Exchange Commission.
\s\ Ernst & Young, LLP
San Jose, California
May 10, 2000
