UNITED STATES SECURITIES AND EXCHANGE COMMISSION
FORM 10-K/A
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2003
Commission File Number: 0-29583
Loudeye Corp.
| Delaware | 91-1908833 | |
| (State or other jurisdiction | (I.R.S. Employer | |
| of incorporation or organization) | Identification No.) | |
| 1130 Rainier Avenue South, Seattle, WA | 98144 | |
| (Address of principal executive offices) | (Zip Code) |
206-832-4000
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock, $0.001 Par Value Per Share
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x Noo
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.o
Indicate by check mark whether the registrant is an accelerated filer (as defined in Exchange Act Rule 12b-2). Yes o Nox
The aggregate market value of the voting stock held by non-affiliates of the registrant was approximately $33,337,055 as of June 30, 2003, based upon the closing sale price on the Nasdaq SmallCap Market reported for such date. Shares of Common Stock held by each officer and director and by each person who owns 5% or more of the outstanding Common Stock have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate status is not necessarily a conclusive determination for other purposes.
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.
| Common | 69,906,701 | |
| (Class) | (Outstanding at May 10, 2004) |
TABLE OF CONTENTS
EXPLANATORY NOTE
This Amendment No. 2 on Form 10-K/A is being filed by Loudeye Corp. (the “Company”) as an amendment to its Annual Report on Form 10-K for the fiscal year ended December 31, 2003, filed with the Securities and Exchange Commission on March 22, 2004 (the “Original Report”) and amended on April 28, 2004 (“Amendment No. 1”), to (i) correct errors in the information provided in the Summary Compensation Table for Executive Officers found in Item 11 of Part III contained in Amendment No. 1 and (ii) complete the list of exhibits found in Item 15 of Part IV contained in Amendment No. 1. The Exhibit Index was complete, and the relevant exhibits have already been filed; however, the list of exhibits in Item 15 of Part IV was not complete. Except as otherwise stated herein, no other information contained in the Original Report, as amended by Amendment No. 1, has been updated by this Amendment No. 2.
PART II
| Item 9A | Controls and Procedures |
Our management, with the participation of the our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the Exchange Act)) as of the end of the period covered by this report. Based on that evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of the end of such period, our disclosure controls and procedures are effective.
There have not been any changes in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during our fiscal fourth quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Limitations.Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls or internal controls over financial reporting will prevent all errors or all instances of fraud. A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within our company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Controls can also be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the controls. The design of any system of controls is based in part upon certain assumptions about the likelihood of future events, and any design may not succeed in achieving its stated goals under all potential future conditions. Over time, controls may become inadequate because of changes in conditions or deterioration in the degree of compliance with policies or procedures. Because of the inherent limitation of a cost-effective control system, misstatements due to error or fraud may occur and not be detected.
PART III
Item 11 Executive Compensation
Compensation Arrangements with Directors
Each non-employee director currently receives an annual retainer of $30,000 in connection with his service on the Board, paid in quarterly installments (but contingent on his attending a specific number of Board meetings). In addition, all non-employee directors receive a non-statutory option to purchase 100,000 shares of Common Stock upon initial appointment to the Board. At each annual meeting of the Company’s stockholders, each non-employee director who will continue serving on the Board following the meeting, and who has been a director for at least six months prior to the meeting, receives an option to purchase an additional 25,000 shares of Common Stock. These options are exercisable for ten years. The shares underlying the initial grant vest monthly in substantially equal increments over twelve months, commencing on the grant date. Annual grants also vest monthly in substantially equal increments over twelve or twenty-four months, commencing on the grant date. The exercise price of options granted to directors must be at least 100% of the fair market value of the Common Stock on the date of grant. The options may be exercised only (a) while the individual is serving as a director on the Board, (b) within twelve months after termination by death or disability, or (c) within three months after the individual’s term as director ends.
Summary of Compensation of Executive Officers
The following Summary Compensation Table sets forth the compensation during the last three fiscal years of each person who served as Chief Executive Officer and the four most highly compensated persons other than the Chief Executive Officer who were serving as executive officers of the Company as of December 31, 2003 (collectively, the “Named Executive Officers”):
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Summary Compensation Table
| Long-Term Compensation | ||||||||||||||||||||||||||||||||
| Annual Compensation | Awards | Payouts | ||||||||||||||||||||||||||||||
| Other Annual | Restricted | Securities | LTIP | All Other | ||||||||||||||||||||||||||||
| Name & Principal | Fiscal | Salary | Bonus | Compensation | Stock | Underlying | Payouts | Compensation | ||||||||||||||||||||||||
| Position | Year | ($)(1) | ($)(2) | ($) | Award(s) | Options (#) | ($) | ($) | ||||||||||||||||||||||||
John T. Baker IV(3) | 2003 | 34,185 | — | — | — | — | — | — | ||||||||||||||||||||||||
| Chairman and Chief | 2002 | 287,680 | — | — | — | 650,000 | — | — | ||||||||||||||||||||||||
| Executive Officer | 2001 | 247,884 | 75,000 | — | 133,929 | 1,200,000 | — | 121,438 | ||||||||||||||||||||||||
Philip J. Gioia(4) | 2003 | — | — | — | — | — | — | — | ||||||||||||||||||||||||
| Chief Executive Officer | ||||||||||||||||||||||||||||||||
Jeffrey M. Cavins(5) | 2003 | 269,375 | 62,500 | — | — | 1,500,000 | — | — | ||||||||||||||||||||||||
| President, Chief Executive Officer and Director | ||||||||||||||||||||||||||||||||
| Michael S. Dougherty | 2003 | 146,875 | 64,500 | — | — | 250,000 | — | — | ||||||||||||||||||||||||
| Vice President of | 2002 | 139,515 | — | — | — | 110,000 | — | — | ||||||||||||||||||||||||
| Corporate Development | 2001 | 127,083 | — | — | — | 115,000 | — | — | ||||||||||||||||||||||||
| Jerold J. Goade, Jr. | 2003 | 181,018 | 67,250 | — | — | 350,000 | — | — | ||||||||||||||||||||||||
| Senior Vice President | 2002 | 122,612 | — | — | — | 187,750 | — | — | ||||||||||||||||||||||||
| of Finance | ||||||||||||||||||||||||||||||||
Michael H. Harburg(6) | 2003 | 94,792 | 37,000 | — | — | 124,000 | — | — | ||||||||||||||||||||||||
| Vice President of Technical Business Development | ||||||||||||||||||||||||||||||||
John H. Martin(7) | 2003 | 53,846 | 65,000 | — | — | 350,000 | — | — | ||||||||||||||||||||||||
| Senior Vice President of Technology & Development | ||||||||||||||||||||||||||||||||
| (1) | Includes amounts deferred under the Company’s 401(k) plan. | |
| (2) | Includes bonuses earned in the indicated year and paid in the subsequent year. | |
| (3) | In lieu of a cash bonus, Mr. Baker was awarded 133,929 shares of Loudeye Common Stock in 2001. Mr. Baker also received relocation assistance in 2001 in the amount of $121,438 that is included in All Other Compensation. | |
| (4) | Mr. Gioia served as Chief Executive Officer from February to March 2003 as a result of our engagement of Regent Pacific Management Corporation. Mr. Gioia was employed by Regent Pacific. See item 13 of this Annual Report on Form 10-K. | |
| (5) | Includes amounts earned as Senior Vice President of Sales for part of the year prior to becoming President and Chief Executive Officer in March 2003. | |
| (6) | Mr. Harburg served as the Company’s Vice President and Chief Technology Officer from June 2003 to March 2003 and currently serves as the Company’s Vice President of Technical Business Development. | |
| (7) | Represents a prorated annual salary for Mr. Martin, who joined the Company in September 2003. The bonus paid to Mr. Martin is a sign-on bonus and is repayable to the Company by Mr. Martin in the event that he voluntarily terminates his employment with the Company within 12 months of the commencement of his employment. |
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Employment and Related Agreements
John T. Baker.The Company entered into a letter agreement with Mr. John T. Baker on February 23, 2001 that provided for 50% accelerated vesting of Mr. Baker’s remaining options if he was terminated without cause and such termination was not related to a change in control. The letter agreement provided further that if Mr. Baker was terminated for any reason other than for cause, he would be entitled to receive continuation of his base salary and reimbursement for insurance benefits for twelve months. Mr. Baker was to receive full acceleration of the vesting of his options in the event of a change in control. Mr. Baker’s employment with the Company terminated on February 3, 2003, pursuant to a Separation Agreement, Release, and Covenant Not to Sue entered into by the parties on June 26, 2003. The Separation Agreement conditionally provided among other things that (i) the Company would make COBRA premium payments on behalf of Mr. Baker for existing medical insurance and other health and welfare plan benefits through the earlier of December 31, 2003 or upon acceptance of full time employment by Mr. Baker where similar benefits are made available and (ii) the Company would allow accelerated vesting of Mr. Baker’s 1,262,500 unvested option shares at the rate of 75% of the grants, or 946,875 option shares.
Jeffrey M. Cavins.The Company entered into an Employment Agreement, dated as of April 1, 2003, with Mr. Cavins, pursuant to which Mr. Cavins is employed as the President and Chief Executive Officer of the Company. The Employment Agreement provides for a base salary of $250,000 and the grant of an option to purchase 1,500,000 shares of Common Stock of the Company. The Employment Agreement provides for the opportunity to receive a bonus of up to 100% of Mr. Cavins’ base salary based on four separate performance criteria. Mr. Cavins is also entitled to a one-time bonus equal to 30% of his total incentive compensation upon the Company achieving a market capitalization of $20 million. Mr. Cavins has waived receipt of this bonus. In the event that Mr. Cavins is terminated by the Company without cause, or he resigns for good reason, Mr. Cavins will be entitled to severance equal to nine months base salary plus earned and unpaid bonuses. In the event that the Company is sold, Mr. Cavins will be entitled to a bonus equal to 2.5% of the difference in value between the sale price of the Company and the market value of the Company as of April 1, 2003. Mr. Cavins will also be entitled to this bonus, to the extent it is not otherwise paid, if he is terminated without cause or resigns with good reason, within six months of such a sale of the Company. In the event of a change in control, the vesting of Mr. Cavins’ option granted pursuant to the agreement will accelerate. Mr. Cavins has agreed not to compete with the Company or solicit customers or employees of the Company for six months following termination of employment. These non-compete and non-solicitation agreements may not be enforceable in some jurisdictions.
Anthony J. Bay.The Company entered into a Consulting Agreement, dated as of April 1, 2003, with Mr. Bay, the Chairman of the Company. The Consulting Agreement provided for base compensation of $100,000 and the granting of options to purchase 500,000 shares of Common Stock of the Company. The Consulting Agreement provided for the opportunity to receive a bonus of up to 100% of Mr. Bay’s base compensation based on four separate performance criteria. Mr. Bay was also entitled to a one-time bonus equal to 30% of his total incentive compensation upon the Company achieving a market capitalization of $20 million. Mr. Bay has waived receipt of this bonus. The Consulting Agreement also provided that in the event that the Company is sold, Mr. Bay would be entitled to a bonus equal to 1.5% of the difference in value between the sale price of the Company and the market value of the Company as of April 1, 2003. Mr. Bay would also be entitled to this bonus, to the extent it was not otherwise paid, if he was terminated without cause or resigned with good reason, within six months of such a sale of the Company
Effective October 1, 2003, the Company entered into an Employment Agreement with Mr. Bay, pursuant to which Mr. Bay was appointed the Chief Strategy Officer of the Company. The provisions of the Consulting Agreement were mostly superceded by the Employment Agreement; however, certain provisions of the Consulting Agreement, including those related to confidentiality survive. The Employment Agreement provides for a base salary of $150,000 and the grant of a restricted stock award of 15,000 shares of Common Stock. The Employment Agreement provides for the opportunity to receive a bonus of up to 100% of Mr. Bay’s base salary based on four separate performance criteria. The Employment Agreement also provides that in the event that the Company is sold, Mr. Bay is entitled to a bonus equal to 1.5% of the difference in value between the sale price of the Company and the market value of the Company as of April 1, 2003. Mr. Bay is also entitled to this bonus, to the extent it is not otherwise paid, if he is terminated without cause or resigns with good reason, within six months of such a sale of the Company. In the event that Mr. Bay is terminated by the Company without cause, or he resigns for good reason, Mr. Bay will be entitled to severance equal to six months base salary plus earned and unpaid bonuses. The options to purchase 500,000 shares of Common Stock granted pursuant to the Consulting Agreement will continue to vest under the Employment Agreement as contemplated by the Consulting Agreement. In the event of a change in control, the vesting of Mr. Bay’s option granted pursuant to the Consulting Agreement will accelerate. Mr. Bay has agreed not to compete with the Company for twelve months following termination of employment, or to solicit customers or employees of the Company for twenty-four months following termination of employment. These non-compete and non-solicitation agreements may not be enforceable in some jurisdictions.
Jerold J. Goade, Jr.The Company entered into an Employment Agreement, dated as of April 1, 2003, with Mr. Goade, pursuant to which Mr. Goade was appointed the Vice President and Chief Financial Officer of the Company. Mr. Goade remains employed under this agreement in his current capacity as Senior Vice President of Finance. The agreement, as amended, provides for a base salary of $180,000 and the grant of an option to purchase 350,000 shares of Common Stock of the Company. The
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Employment Agreement provides for the opportunity to receive a bonus of up to 100% of Mr. Goade’s base salary based on four separate performance criteria. Mr. Goade is also entitled to a one-time bonus equal to 30% of his total incentive compensation upon the Company achieving a market capitalization of $20 million. Mr. Goade has waived receipt of this bonus. In the event that Mr. Goade is terminated by the Company without cause, or he resigns for good reason, Mr. Goade will be entitled to severance equal to nine months base salary plus earned and unpaid bonuses. In the event that the Company is sold, Mr. Goade will be entitled to a bonus equal to 0.5% of the difference in value between the sale price of the Company and the market value of the Company as of April 1, 2003. Mr. Goade will also be entitled to this bonus, to the extent it is not otherwise paid, if he is terminated without cause or resigns with good reason, within six months of such a sale of the Company. In the event of a change in control, the vesting of Mr. Goade’s option granted pursuant to the agreement will accelerate. Mr. Goade has agreed not to compete with the Company or solicit customers or employees of the Company for six months following termination of employment. These non-compete and non-solicitation agreements may not be enforceable in some jurisdictions.
Michael S. Dougherty.The Company entered into an Employment Agreement, dated as of April 1, 2003, with Mr. Dougherty, pursuant to which Mr. Dougherty was appointed the Vice President of Corporate Development. The agreement provides for a base salary of $150,000 and the grant of an option to purchase 250,000 shares of Common Stock of the Company. The Employment Agreement provides for the opportunity to receive a bonus of up to 100% of Mr. Dougherty’s base salary based on four separate performance criteria. Mr. Dougherty is also entitled to a one-time bonus equal to 30% of his total incentive compensation upon the Company achieving a market capitalization of $20 million. Mr. Dougherty has waived receipt of this bonus. In the event that Mr. Dougherty is terminated by the Company without cause, or he resigns for good reason, Mr. Dougherty will be entitled to severance equal to six months base salary plus earned and unpaid bonuses. In the event that the Company is sold, Mr. Dougherty will be entitled to a bonus equal to 0.5% of the difference in value between the sale price of the Company and the market value of the Company as of April 1, 2003. Mr. Dougherty will also be entitled to this bonus, to the extent it is not otherwise paid, if he is terminated without cause or resigns with good reason, within six months of such a sale of the Company. In the event of a change in control, the vesting of Mr. Dougherty’s option granted pursuant to the agreement will accelerate. Mr. Dougherty has agreed not to compete with the Company or solicit customers or employees of the Company for six months following termination of employment. These non-compete and non-solicitation agreements may not be enforceable in some jurisdictions.
The Company has entered into indemnification agreements with certain of its officers. Generally, these agreements attempt to provide the maximum protection permitted by law with respect to indemnification. The indemnification agreements provide that the Company will pay certain amounts incurred by an officer in connection with any civil or criminal action or proceeding, specifically including actions by the Company or in its name (derivative suits), where the individual’s involvement is by reason of the fact that he is or was an officer. Such amounts include, to the maximum extent permitted by law, attorneys’ fees, judgments, civil or criminal fines, settlement amounts and other expenses customarily incurred in connection with legal proceedings. Under the indemnification agreements, an officer will not receive indemnification if he or she is found not to have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the Company’s best interests. The individual will only be indemnified in connection with any criminal proceeding if such individual had no reasonable belief that his or her conduct was unlawful.
Stock Option Grants
The following table shows all stock options granted during fiscal year 2003 to the Named Executive Officers. These options were granted under the Company’s 2000 Stock Option Plan. No stock appreciation rights were granted during the last fiscal year.
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Option Grants in the Last Fiscal Year
| Individual Grants(1) | ||||||||||||||||||||||||||||
| Percent of | Potential Realizable Value at | |||||||||||||||||||||||||||
| Number of | Total Options | Assumed Annual Rates of | ||||||||||||||||||||||||||
| Securities | Granted to | Stock Price Appreciation for | ||||||||||||||||||||||||||
| Underlying | Employees in | Exercise of Base | Grant Date | Option Term(2) | ||||||||||||||||||||||||
| Options | Fiscal Year | Price | Market Price | Expiration | ||||||||||||||||||||||||
| Name | Granted (#)(3) | (%)(4) | ($/sh.) | ($/sh.) | Date | 5% ($) | 10% ($) | |||||||||||||||||||||
| John T. Baker IV | — | 0.00 | % | $ | — | $ | — | |||||||||||||||||||||
| Philip J. Gioia | — | 0.00 | % | — | — | |||||||||||||||||||||||
| Jeffrey M. Cavins | 1,500,000(5) | 37.20 | % | $ | 0.27 | $ | 0.27 | 4/1/13 | 254,702 | 645,466 | ||||||||||||||||||
| Michael S. Dougherty | 250,000(5) | 6.20 | % | $ | 0.27 | $ | 0.27 | 4/1/13 | 42,450 | 107,578 | ||||||||||||||||||
| Jerold J. Goade, Jr. | 350,000(5) | 8.68 | % | $ | 0.27 | $ | 0.27 | 4/1/13 | 59,431 | 150,609 | ||||||||||||||||||
| Michael H. Harburg | 80,000(6) | 1.98 | % | $ | 0.29 | $ | 0.29 | 5/9/13 | 14,590 | 36,975 | ||||||||||||||||||
| 44,000(7) | 1.09 | % | $ | 0.29 | $ | 1.12 | 7/9/13 | 67,512 | 115,060 | |||||||||||||||||||
| John H. Martin | 125,000(5) | 3.10 | % | $ | 1.74 | $ | 1.74 | 12/4/13 | 136,785 | 346,639 | ||||||||||||||||||
| 225,000(7) | 5.58 | % | $ | 1.74 | $ | 1.74 | 12/4/13 | 246,212 | 623,950 | |||||||||||||||||||
| (1) | The options have a 10-year term, but are subject to earlier termination in connection with termination of employment. | |
| (2) | The potential realizable value illustrates value that might be realized upon exercise of the options immediately prior to expiration of their terms, assuming the specified compounded rates of appreciation of the market price per share from the date of grant to the end of the option term. Actual gains, if any, on stock option exercises are dependent upon a number of factors, including the future performance of the Common Stock and the timing of option exercises, as well as the optionees’ continued employment throughout the vesting period. These are calculated based on the requirements promulgated by the SEC and do not reflect the Company’s estimate of future stock price appreciation. | |
| (3) | The options have ten-year terms and vest as described in notes (5), (6) and (7), below. Upon a change in control, these options will vest immediately and become fully exercisable. | |
| (4) | The Company granted stock options representing 4,031,790 shares to employees in the last fiscal year. | |
| (5) | Denotes stock option grants that vest ratably at a rate of 8.33% per month over twelve months. | |
| (6) | Denotes stock option grants that vest at a rate of one third of the total number of options granted after twelve months, and ratably thereafter at a rate of 8.33% every quarter until fully vested. | |
| (7) | Denotes stock option grants that vest ratably at a rate of 2.78% per month over 36 months. |
Stock Option Exercises and Holdings
The following table shows stock options exercised during fiscal year 2003 and unexercised options held at the end of the year by each of the Named Executive Officers. No stock appreciation rights were outstanding at fiscal year end.
Aggregated Option Exercises in Last Fiscal Year and Fiscal Year End Option Values
| Number of Securities Underlying | Value of Unexercised | |||||||||||||||||||||||
| Unexercised Options as | In-the-Money Options | |||||||||||||||||||||||
| December 31, 2003(#) | at December 31, 2003 | |||||||||||||||||||||||
| Shares Acquired | Value Realized | |||||||||||||||||||||||
| Name | on Exercise (#) | ($)(1) | Exercisable | Unexercisable | Exercisable | Unexercisable(2) | ||||||||||||||||||
| John T. Baker IV | 1,534,375 | $ | 1,337,268 | 0 | 0 | 0 | 0 | |||||||||||||||||
| Philip J. Gioia | — | — | 0 | 0 | 0 | 0 | ||||||||||||||||||
| Jeffrey M. Cavins | — | — | 1,129,160 | 820,840 | $ | 1,885,989 | $ | 1,352,011 | ||||||||||||||||
| Michael S. Dougherty | — | — | 358,747 | 166,253 | $ | 385,958 | $ | 258,892 | ||||||||||||||||
| Jerold J. Goade, Jr. | — | — | 394,726 | 255,274 | $ | 602,050 | $ | 406,679 | ||||||||||||||||
| Michael H. Harburg | 6,000 | 8,340 | 111 | 117,889 | $ | 184 | $ | 195,696 | ||||||||||||||||
| John H. Martin | — | — | 66, 667 | 283,333 | $ | 14,000 | $ | 59,500 | ||||||||||||||||
| (1) | The “value realized” reflects the appreciation on the date of exercise (based on the excess of the fair market value of Common Stock on the date of exercise over the exercise price). However, because the Named Executive Officers may keep the shares they acquired upon the |
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| exercise of the options (or sell them at a different price), these amounts do not necessarily reflect cash realized upon the sale of those shares. | ||
| (2) | Based on the $1.95 closing price of the Common Stock as of December 31, 2003. |
Compensation Committee Interlocks and Insider Participation
The Compensation Committee of the Board of Directors currently consists of James R. Kuster, Johan C. Liedgren and Michael A. Brochu. No member of the committee or executive officer of the Company has a relationship that would constitute an interlocking relationship with executive officers or directors of another entity.
PART IV
Item 15 Exhibits, Financial Statement Schedules, and Reports on Form 8-K
| (a) | Documents filed as part of Form 10-K |
| 1. | Financial Statements: The following financial statements of Loudeye are submitted in a separate section pursuant to the requirements of Form 10-K, Part I, Item 8: | |||
| Index to Consolidated Financial Statements | ||||
| Report of Independent Auditors | ||||
| Report of Arthur Andersen LLP | ||||
| Consolidated Balance Sheets | ||||
| Consolidated Statements of Operations | ||||
| Consolidated Statements of Stockholders’ Equity | ||||
| Consolidated Statements of Cash Flows | ||||
| Notes to Consolidated Financial Statements | ||||
| 2. | Exhibits: | |||
| 3.1(1) | Fifth Amended and Restated Certificate of Incorporation of Loudeye Corp. | |||||
| 3.2(1) | Form of Amended and Restated Certificate of Incorporation of Loudeye Corp. | |||||
| 3.4(2) | Amended Bylaws of Loudeye Corp. dated January 18, 2002. | |||||
| 4.1(1) | Form of Loudeye Corp. common stock certificate. | |||||
| 10.1(1) | Form of Indemnification Agreement between Loudeye Corp. and each of its officers and directors. | |||||
| 10.2(1) | 1998 Stock Option Plan, as amended. | |||||
| 10.3(1) | Alive.com, Inc. 1998 Stock Option Plan. | |||||
| 10.4(1) | 2000 Stock Option Plan. | |||||
| 10.5(1) | 2000 Director Stock Option Plan. | |||||
| 10.6(1) | 2000 Employee Stock Purchase Plan. | |||||
| 10.7(3) | 2000 Employee Stock Option Plan as amended March 5, 2001. | |||||
| 10.8(1) | Amended and Restated Investors’ Rights Agreement dated December 14, 1999 among Loudeye Corp. and certain holders of our preferred stock. | |||||
| 10.9(4) | Consulting Agreement dated April 1, 2003 between Anthony J. Bay and Loudeye Corp. | |||||
| 10.10(11) | Employment Agreement dated December 5, 2003 between Anthony J. Bay and Loudeye Corp. | |||||
| 10.11(4) | Employment Agreement dated April 1, 2003 between Jeffrey M. Cavins and Loudeye Corp. | |||||
| 10.12(4) | Employment Agreement dated April 1, 2003 between Jerold J. Goade, Jr. and Loudeye Corp. | |||||
| 10.13(4) | Employment Agreement dated April 1, 2003 between Michael S. Dougherty and Loudeye Corp. | |||||
| 10.14(4) | Offer letter dated June 16, 2003 between Michael R. Harburg and Loudeye Corp. | |||||
| 10.15(11) | Offer letter dated August 13, 2003 between John H. Martin and Loudeye Corp. | |||||
| 10.16(5) | Securities Purchase Agreement dated August 28, 2003. | |||||
| 10.17(5) | Registration Rights Agreement dated August 28, 2003. | |||||
| 10.18(5) | Form of Common Stock Purchase Warrant dated August 28, 2003. | |||||
| 10.19(5) | Accounts Receivable Financing Agreement dated June 27, 2003 between Silicon Valley Bank and Loudeye Corp. and related modification agreement and warrant agreement. | |||||
| 10.20(10) | Credit facility, dated December 31, 2003 between Silicon Valley Bank and Loudeye Corp. | |||||
| 10.21(7) | Fifth Amendment and Assignment of Lease dated April 1, 2003 among 1130 Rainier, LLC, Activate.Net Corporation, and Loudeye Enterprise Communications, Inc. for offices at 1130 Rainier Avenue South, Seattle, Washington. | |||||
| 10.22(7) | Lease Termination Agreement dated April 28, 2003 between Westlake Park Associates and Loudeye | |||||
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| Corp. with respect to offices at 1904 Fourth Avenue, Seattle, Washington. | ||||||
| 10.23(11) | Lease agreement dated December 20, 2003 for offices at 1130 Rainier Avenue South, Seattle, Washington. | |||||
| 10.24(11) | Asset Purchase agreement dated October 31, 2003 between Gail Clarke Acquisition Corp. and Vidipax, Inc. | |||||
| 10.25(8) | Agreement and Plan of Reorganization with TT Holding Corp. | |||||
| 10.26(9) | Retainer Agreement with Regent Pacific Management Corporation. | |||||
| 14.1(11) | Code of Ethics | |||||
| 21.1(11) | Subsidiaries of Loudeye Corp. | |||||
| 23.1(2) | Consent of Arthur Andersen LLP. | |||||
| 23.2(11) | Consent of PricewaterhouseCoopers LLP. | |||||
| 24.1(11) | Powers of Attorney of Board of Directors. | |||||
| 31.1 | Certification of Jeffrey M. Cavins, President and Chief Executive Officer of Loudeye Corp., Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |||||
| 31.2 | Certification of Lawrence J. Madden, Chief Financial Officer of Loudeye Corp., Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |||||
| 32.1(11) | Certification of Jeffrey M. Cavins, President and Chief Executive Officer of Loudeye Corp., Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |||||
| 32.2(11) | Certification of Jerold J. Goade, Jr., Senior Vice President of Finance of Loudeye Corp., Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |||||
| (1) | Incorporated by reference to Loudeye Corp.’s registration statement on Form S-1 file number 333-93361. | |
| (2) | Incorporated by reference to Loudeye Corp.’s Form 10-K for the period ended December 31, 2001. | |
| (3) | Incorporated by reference to Loudeye Corp.’s Form 10-Q, for the period ending March 31, 2001. | |
| (4) | Incorporated by reference to Loudeye Corp.’s Form 10-Q/A filed on September 2, 2003. | |
| (5) | Incorporated by reference to Loudeye Corp.’s Form 8-K filed on September 2, 2003. | |
| (6) | Incorporated by reference to Loudeye Corp.’s Form 8-K dated July 15, 2003. | |
| (7) | Incorporated by reference to Loudeye Corp.’s Form 10-Q dated May 20, 2003. | |
| (8) | Incorporated by reference to Loudeye Corp.’s Form 8-K dated November 19, 2002. | |
| (9) | Incorporated by reference to Loudeye Corp.’s Form 8-K dated February 3, 2003. | |
| (10) | Incorporated by reference to Loudeye Corp.’s Form 8-K dated January 9, 2004. | |
| (11) | Previously filed. |
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SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Report on Form 10-K/A to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Seattle, State of Washington, May 13, 2004.
| LOUDEYE CORP. | ||
| By: | /s/ JEFFREY M. CAVINS | |
| Jeffrey M. Cavins | ||
| Chief Executive Officer | ||
Pursuant to the requirements of the Securities Exchange Act of 1934, this Report on Form 10-K/A has been signed by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ JEFFREY M. CAVINS | Chief Executive Officer | May 13, 2004 | ||
| (Principal Executive Officer and Director) | ||||
| Jeffrey M. Cavins | ||||
| /s/ LAWRENCE J. MADDEN | Chief Financial Officer | May 13, 2004 | ||
| (Principal Financial and Accounting Officer) | ||||
| Lawrence J. Madden | ||||
| * | Director | May 13, 2004 | ||
| Johan C. Liedgren | ||||
| * | Director | May 13, 2004 | ||
| Kurt R. Krauss | ||||
| * | Chief Strategy Officer and Director | May 13, 2004 | ||
| Anthony J. Bay | ||||
| * | Director | May 13, 2004 | ||
| James R. Kuster | ||||
| * | Director | May 13, 2004 | ||
| Michael A. Brochu |
| *By | /s/ JEFFREY M. CAVINS | |
| Jeffrey M. Cavins | ||
| Attorney-in-fact |
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EXHIBIT INDEX
| Ex. No. | Description | |||||
| 3.1(1) | Fifth Amended and Restated Certificate of Incorporation of Loudeye Corp. | |||||
| 3.2(1) | Form of Amended and Restated Certificate of Incorporation of Loudeye Corp. | |||||
| 3.4(2) | Amended Bylaws of Loudeye Corp. dated January 18, 2002. | |||||
| 4.1(1) | Form of Loudeye Corp. common stock certificate. | |||||
| 10.1(1) | Form of Indemnification Agreement between Loudeye Corp. and each of its officers and directors. | |||||
| 10.2(1) | 1998 Stock Option Plan, as amended. | |||||
| 10.3(1) | Alive.com, Inc. 1998 Stock Option Plan. | |||||
| 10.4(1) | 2000 Stock Option Plan. | |||||
| 10.5(1) | 2000 Director Stock Option Plan. | |||||
| 10.6(1) | 2000 Employee Stock Purchase Plan. | |||||
| 10.7(3) | 2000 Employee Stock Option Plan as amended March 5, 2001. | |||||
| 10.8(1) | Amended and Restated Investors’ Rights Agreement dated December 14, 1999 among Loudeye Corp. and certain holders of our preferred stock. | |||||
| 10.9(4) | Consulting Agreement dated April 1, 2003 between Anthony J. Bay and Loudeye Corp. | |||||
| 10.10(11) | Employment Agreement dated December 5, 2003 between Anthony J. Bay and Loudeye Corp. | |||||
| 10.11(4) | Employment Agreement dated April 1, 2003 between Jeffrey M. Cavins and Loudeye Corp. | |||||
| 10.12(4) | Employment Agreement dated April 1, 2003 between Jerold J. Goade, Jr. and Loudeye Corp. | |||||
| 10.13(4) | Employment Agreement dated April 1, 2003 between Michael S. Dougherty and Loudeye Corp. | |||||
| 10.14(4) | Offer letter dated June 16, 2003 between Michael R. Harburg and Loudeye Corp. | |||||
| 10.15(11) | Offer letter dated August 13, 2003 between John H. Martin and Loudeye Corp. | |||||
| 10.16(5) | Securities Purchase Agreement dated August 28, 2003. | |||||
| 10.17(5) | Registration Rights Agreement dated August 28, 2003. | |||||
| 10.18(5) | Form of Common Stock Purchase Warrant dated August 28, 2003. | |||||
| 10.19(5) | Accounts Receivable Financing Agreement dated June 27, 2003 between Silicon Valley Bank and Loudeye Corp. and related modification agreement and warrant agreement. | |||||
| 10.20(10) | Credit facility, dated December 31, 2003 between Silicon Valley Bank and Loudeye Corp. | |||||
| 10.21(7) | Fifth Amendment and Assignment of Lease dated April 1, 2003 among 1130 Rainier, LLC, Activate.Net Corporation, and Loudeye Enterprise Communications, Inc. for offices at 1130 Rainier Avenue South, Seattle, Washington. | |||||
| 10.22(7) | Lease Termination Agreement dated April 28, 2003 between Westlake Park Associates and Loudeye Corp. with respect to offices at 1904 Fourth Avenue, Seattle, Washington. | |||||
| 10.23(11) | Lease agreement dated December 20, 2003 for offices at 1130 Rainier Avenue South, Seattle, Washington. | |||||
| 10.24(11) | Asset Purchase agreement dated October 31, 2003 between Gail Clarke Acquisition Corp. and Vidipax, Inc. | |||||
| 10.25(8) | Agreement and Plan of Reorganization with TT Holding Corp. | |||||
| 10.26(9) | Retainer Agreement with Regent Pacific Management Corporation. | |||||
| 14.1(11) | Code of Ethics | |||||
| 21.1(11) | Subsidiaries of Loudeye Corp. | |||||
| 23.1(2) | Consent of Arthur Andersen LLP. | |||||
| 23.2(11) | Consent of PricewaterhouseCoopers LLP. | |||||
| 24.1(11) | Powers of Attorney of Board of Directors. | |||||
| 31.1 | Certification of Jeffrey M. Cavins, President and Chief Executive Officer of Loudeye Corp., Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |||||
| 31.2 | Certification of Lawrence J. Madden, Chief Financial Officer of Loudeye Corp., Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |||||
| 32.1(11) | Certification of Jeffrey M. Cavins, President and Chief Executive Officer of Loudeye Corp., Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |||||
| 32.2(11) | Certification of Jerold J. Goade, Jr., Senior Vice President of Finance of Loudeye Corp., Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |||||
| (1) | Incorporated by reference to Loudeye Corp.’s registration statement on Form S-1 file number 333-93361. | |
| (2) | Incorporated by reference to Loudeye Corp.’s Form 10-K for the period ended December 31, 2001. | |
| (3) | Incorporated by reference to Loudeye Corp.’s Form 10-Q, for the period ending March 31, 2001. | |
| (4) | Incorporated by reference to Loudeye Corp.’s Form 10-Q/A filed on September 2, 2003. | |
| (5) | Incorporated by reference to Loudeye Corp.’s Form 8-K filed on September 2, 2003. | |
| (6) | Incorporated by reference to Loudeye Corp.’s Form 8-K dated July 15, 2003. | |
| (7) | Incorporated by reference to Loudeye Corp.’s Form 10-Q dated May 20, 2003. | |
| (8) | Incorporated by reference to Loudeye Corp.’s Form 8-K dated November 19, 2002. | |
| (9) | Incorporated by reference to Loudeye Corp.’s Form 8-K dated February 3, 2003. | |
| (10) | Incorporated by reference to Loudeye Corp.’s Form 8-K dated January 9, 2004. | |
| (11) | Previously filed. |
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