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Section 1: S-8 (S-8)

Document


As filed with the Securities and Exchange Commission on February 15, 2017
Registration No. 333-
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Pandora Media, Inc.
(Exact name of registrant as specified in its charter)
Delaware
 (State or other jurisdiction of incorporation or organization)
94-3352630
 (I.R.S. Employer Identification No.)
 
2101 Webster Street, Suite 1650
Oakland, CA 94612
(Address of Principal Executive Offices)
 
2011 Equity Incentive Plan
(Full title of the plan)

Tim Westergren
Chief Executive Officer
Pandora Media, Inc.
2101 Webster Street, Suite 1650
Oakland, CA 94612
Telephone: (510) 451-4100

(Name, address and telephone number, including area code, of agent for service)
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer x
Accelerated filer o
Non-accelerated filer o (Do not check if a smaller reporting company)
Smaller reporting company o
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered
Amount to be
Registered (1)
 
Proposed Maximum
Offering Price per
Share
 
Proposed Maximum
Aggregate Offering
Price
 
Amount of
Registration Fee
Common Stock, par value $0.0001 per share
in respect of


 
 

 
 

 
 

-2011 Equity Incentive Plan
10,021,477

(2)
$
13.03

(3)
$
130,579,845.31

(3)
$
15,134.20

Total
10,021,477

 
$
13.03

 
$
130,579,845.31

 
$
15,134.20

(1)
In the event of a stock split, stock dividend or similar transaction involving the Registrant's common stock, $0.0001 par value per share ("Common Stock"), the number of shares registered hereby shall automatically be adjusted in accordance with Rule 416 under the Securities Act of 1933, as amended (the "Securities Act").
(2)
Represents (i) 9,406,510 shares of the Registrant's common stock reserved for issuance pursuant to the annual increase provision under its 2011 Equity Incentive Plan (the "2011 Plan") and (ii) 614,967 shares of Registrant's common stock available for reissuance in connection with previously issued awards under the 2011 Plan in accordance with the 2011 Plan's terms and conditions.
(3)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act. The Proposed Maximum Offering Price Per Share is the average of the high and low prices of the Registrant's Common Stock as reported on the New York Stock Exchange on February 13, 2017 (rounded up to the nearest cent).
 





PART I
 
EXPLANATORY NOTE
 
This Registration Statement is being filed for the purpose of (i) registering shares of Pandora Media, Inc.'s (the "Registrant") common stock pursuant to an annual increase to the number of shares of common stock reserved for issuance under its 2011 Equity Incentive Plan (the "2011 Plan") and (ii) registering shares of Registrant's common stock available for reissuance in connection with previously issued awards under the 2011 Plan in accordance with the 2011 Plan's terms and conditions.


INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENT ON FORM S-8

The Registrant previously registered shares of its common stock for issuance under the 2011 Plan under a Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the "SEC") on July 6, 2011 (File No. 333-175378), and registered additional shares of its common stock for issuance under the 2011 Plan under Registration Statements on Form S-8 filed with the SEC on June 19, 2012, March 18, 2013, January 28, 2014, February 11, 2015, November 13, 2015 and February 19, 2016 (File Nos. 333-182212, 333-187340, 333-193612, 333-202029, 333-208006 and 333-209609). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.





PART II
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
ITEM 3.       INCORPORATION OF DOCUMENTS BY REFERENCE
 
The following documents filed with the Commission pursuant to the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by reference herein:

(a)    The Registrant's Annual Report on Form 10-K for the year ended December 31, 2016 filed with the SEC on February 15, 2017;

(b)    The Registrant's Current Report on Form 8-K filed with the SEC on January 11, 2017;

(c)    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 Registrant's Annual Report referred to in (a) above; and

(d)    The description of the Registrant's Common Stock contained in the Registrant's registration statement on Form 8-A (File No. 001-35198), filed by the Registrant with the Commission under Section 12(b) of the Exchange Act on June 8, 2011, including any amendments or reports filed for the purpose of updating such description.

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the filing of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, are incorporated by reference in this Registration Statement and are a part hereof from the date of filing of such documents; except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished on Form 8-K that is not deemed filed under such provisions. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

ITEM 4.       DESCRIPTION OF SECURITIES
 
Not Applicable.
 
ITEM 5.       INTERESTS OF NAMED EXPERTS AND COUNSEL
 
None.

ITEM 6.       INDEMNIFICATION OF DIRECTORS AND OFFICERS

The Registrant's amended and restated certificate of incorporation (the "Certificate") and amended and restated bylaws (the "Bylaws") provide that the Registrant will indemnify its directors and executive officers to the fullest extent permitted by the Delaware General Corporation Law, which prohibits the Certificate from limiting the liability of the Registrant's directors for the following:

breach of the director's duty of loyalty to the corporation or its stockholders,

acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law,

unlawful payment of dividends or unlawful stock purchases or redemptions, and

any transaction from which a director derived an improper personal benefit.

If Delaware law is amended to authorize corporate action further eliminating or limiting the personal liability of a director, then the liability of the Registrant's directors will be eliminated or limited to the fullest extent permitted by Delaware law, as so amended. The Certificate does not eliminate a director's duty of care and, in appropriate circumstances, equitable remedies, such as injunctive or other forms of nonmonetary relief, remain available under Delaware law. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws or other state or federal





laws. Under the Bylaws, the Registrant is empowered to enter into indemnification agreements with its directors, officers, employees and other agents and to purchase insurance on behalf of any person whom the Registrant is required or permitted to indemnify.

In addition to the indemnification required in the Certificate and the Bylaws, the Registrant has entered into agreements to indemnify our directors and executive officers, and other employees as determined by the Registrant's board of directors, against expenses and liabilities to the fullest extent permitted by Delaware law. These agreements also provide, subject to certain exceptions, for indemnification for related expenses including, among others, attorneys' fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding. The Registrant believes that the provisions in the Certificate, the Bylaws and the indemnification agreements are necessary to attract and retain qualified persons as directors and executive officers. The Registrant also maintains directors' and officers' liability insurance to cover liabilities its directors and officers may incur in connection with their services to the Registrant.

ITEM 7.       EXEMPTION FROM REGISTRATION CLAIMED

Not Applicable.






ITEM 8.       EXHIBITS
 
Exhibit
 
 
 
Incorporated by Reference
 
Filed
Number
 
Description
 
Form
 
File No.
 
Filing Date
 
Exhibit
 
Herewith
4.1
 
Amended and Restated Certificate of Incorporation
 
S-1/A
 
333-172215
 
April 1, 2011
 
3.1
 
 
4.2
 
Certificate of Amendment to the Amended and Restated Certificate of Incorporation
 
10-Q
 
001-35198
 
July 26, 2016
 
3.02
 
 
4.3
 
Amended and Restated Bylaws
 
S-1/A
 
333-172215
 
April 1, 2011
 
3.2
 
 
4.4
 
Certificate of Amendment to the Amended and Restated Bylaws
 
10-Q
 
001-35198
 
July 26, 2016
 
3.04
 
 
5.1
 
Opinion of Sidley Austin LLP
 
 
 
 
 
 
 
 
 
X
23.1
 
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
 
 
 
 
 
 
 
 
 
X
23.2
 
Consent of Sidley Austin LLP (contained in Exhibit 5.1)
 
 
 
 
 
 
 
 
 
X
24.1
 
Power of Attorney (included on the signature page of this registration statement)
 
 
 
 
 
 
 
 
 
X
99.1
 
2011 Equity Incentive Plan
 
S-1/A
 
333-172215
 
May 26, 2011
 
10.1
 
 
99.2
 
Amendment No. 1 to the 2011 Equity Incentive Plan
 
 
 
 
 
 
 
 
 
X






ITEM 9.       UNDERTAKINGS
 
A.     
The undersigned Registrant hereby undertakes:
 
1)   to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the "1933 Act"), (ii) to reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference into this Registration Statement;
 
2)    that for the purpose of determining any liability under the 1933 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; and
 
3)    to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
B.    
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into this 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 1933 Act may be permitted to directors, officers, or controlling persons of the Registrant pursuant to the indemnification foregoing provisions summarized in Item 6 or otherwise, the Registrant has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final adjudication of such issue.





SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Oakland, State of California, on this 15th day of February 2017.
 
 
Pandora Media, Inc.
 
 
 
 
 
By:
/s/ Tim Westergren
 
Name:
Tim Westergren
 
Title:
Chief Executive Officer (Principal Executive Officer) and Director
 
POWER OF ATTORNEY
 
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, constitutes and appoints Tim Westergren, Michael S. Herring and Stephen Bené and each of them, our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to do any and all acts and things and execute, in the name of the undersigned, any and all instruments which said attorneys-in-fact and agents may deem necessary or advisable in order to enable Pandora Media, Inc. to comply with the Securities Act of 1933 and any requirements of the Securities and Exchange Commission in respect thereof, in connection with the filing with the Securities and Exchange Commission of the registration statement on Form S-8 under the Securities Act of 1933, including specifically but without limitation, power and authority to sign the name of the undersigned to such registration statement, and any amendments to such registration statement (including post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with applicable state securities laws, and to file the same, together with other documents in connection therewith with the appropriate state securities authorities, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and to perform each and every act and thing requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, and any of them, or their substitutes, may lawfully 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 date indicated.
 
Signature
 
Title
 
Date
 
 
 
 
 
/s/ Tim Westergren
 
Chief Executive Officer (Principal Executive Officer) and Director

 
February 15, 2017
Tim Westergren
 
 
 
 
/s/ Michael S. Herring
 
President and Chief Financial Officer (Duly Authorized Officer and Principal Financial and Accounting Officer)
 
February 15, 2017
Michael S. Herring
 
 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Roger Faxon
 
Director
 
February 15, 2017
Roger Faxon
 
 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ James M. P. Feuille
 
Director
 
February 15, 2017
James M. P. Feuille
 
 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Peter Gotcher
 
Director
 
February 15, 2017
Peter Gotcher
 
 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Timothy Leiweke
 
Director
 
February 15, 2017
Timothy Leiweke
 
 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Elizabeth A. Nelson
 
Director
 
February 15, 2017
Elizabeth A. Nelson
 
 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Mickie Rosen
 
Director
 
February 15, 2017
Mickie Rosen
 
 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Anthony Vinciquerra
 
Director
 
February 15, 2017
Anthony Vinciquerra
 
 
 
 







INDEX TO EXHIBITS
 
Exhibit
 
 
 
Incorporated by Reference
 
Filed
Number
 
Description
 
Form
 
File No.
 
Filing Date
 
Exhibit
 
Herewith
4.1
 
Amended and Restated Certificate of Incorporation
 
S-1/A
 
333-172215
 
April 1, 2011
 
3.1
 
 
4.2
 
Certificate of Amendment to the Amended and Restated Certificate of Incorporation
 
10-Q
 
001-35198
 
July 26, 2016
 
3.02
 
 
4.3
 
Amended and Restated Bylaws
 
S-1/A
 
333-172215
 
April 1, 2011
 
3.2
 
 
4.4
 
Certificate of Amendment to the Amended and Restated Bylaws
 
10-Q
 
001-35198
 
July 26, 2016
 
3.04
 
 
5.1
 
Opinion of Sidley Austin LLP
 
 
 
 
 
 
 
 
 
X
23.1
 
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
 
 
 
 
 
 
 
 
 
X
23.2
 
Consent of Sidley Austin LLP (contained in Exhibit 5.1)
 
 
 
 
 
 
 
 
 
X
24.1
 
Power of Attorney (included on the signature page of this registration statement)
 
 
 
 
 
 
 
 
 
X
99.1
 
2011 Equity Incentive Plan
 
S-1/A
 
333-172215
 
May 26, 2011
 
10.1
 
 
99.2
 
Amendment No. 1 to the 2011 Equity Incentive Plan
 
 
 
 
 
 
 
 
 
X



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Section 2: EX-5.1 (EXHIBIT 5.1)

Exhibit
38090384_sidleya02.jpg
SIDLEY AUSTIN LLP
1001 PAGE MILL ROAD
BUILDING 1
PALO ALTO, CA 94304
+1 650 565 7000
+1 650 565 7100 FAX

BEIJING
BOSTON
BRUSSELS
CENTURY CITY
CHICAGO
DALLAS
GENEVA
HONG KONG
HOUSTON
LONDON
LOS ANGELES
MUNICH
NEW YORK
PALO ALTO
SAN FRANCISCO
SHANGHAI
SINGAPORE
SYDNEY
TOKYO
WASHINGTON, D.C.
 
 
Founded 1866

 
 

February 15, 2017


Pandora Media, Inc.
2101 Webster Street, Suite 1650
Oakland, CA 94612

Re:
10,021,477 Shares of Common Stock, $0.0001 par value per share

Ladies and Gentlemen:

We refer to the Registration Statement on Form S-8 (the “Registration Statement”) being filed by Pandora Media, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of 10,021,477 shares of Common Stock, $0.0001 par value per share (the “Registered Shares”), of the Company, which may be issued under the 2011 Equity Incentive Plan (the “Plan”).

This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

We have examined the Registration Statement, the Company’s certificate of incorporation, the Plan, the resolutions adopted by the board of directors of the Company relating to the Registration Statement and the Plan and the resolutions adopted by the stockholders of the Company relating to the Plan. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of the Company and other corporate documents and instruments, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Company.

Based on the foregoing, we are of the opinion that each Registered Share that is newly issued pursuant to the Plan will be validly issued, fully paid and non-assessable when: (i) the Registration Statement, as finally amended, shall have become effective under the Securities Act; (ii) such Registered Share shall have been duly issued and delivered in accordance with the Plan; and (iii) the Company’s books shall reflect the issuance of such Registered Share to the






Pandora Media, Inc.
February 15, 2017
Page 2

person entitled thereto against payment of the agreed consideration therefor in an amount not less than the par value thereof, all in accordance with the Plan.

This opinion letter is limited to the General Corporation Law of the State of Delaware. We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.

We hereby consent to the filing of this opinion letter as an Exhibit to the Registration Statement and to all references to our Firm included in or made a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.


 
Very truly yours,
 
 
 
 
 
/s/ Sidley Austin LLP






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Section 3: EX-23.1 (EXHIBIT 23.1)

Exhibit


Exhibit 23.1
 
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
 
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2011 Equity Incentive Plan of Pandora Media, Inc. of our reports dated February 15, 2017, with respect to the consolidated financial statements of Pandora Media, Inc. and the effectiveness of internal control over financial reporting of Pandora Media, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2016, filed with the Securities and Exchange Commission.

 
 
/s/ Ernst & Young LLP

San Francisco, California
February 15, 2017



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Section 4: EX-99.2 (EXHIBIT 99.2)

Exhibit

Exhibit 99.2
AMENDMENT NUMBER ONE
TO THE
PANDORA MEDIA, INC.
2011 EQUITY INCENTIVE PLAN
WHEREAS, Pandora Media, Inc., a Delaware corporation (the “Company”), maintains the Pandora Media, Inc. 2011 Equity Incentive Plan (the “Plan”);
WHEREAS, pursuant to Section 14(a) of the Plan, the Board of Directors of the Company (the “Board”) has the authority to amend the Plan as it shall deem advisable, subject to any requirement of stockholder approval required by applicable law, rule or regulation; and
WHEREAS, based on recent amendments to applicable accounting standards, the Board has authorized an amendment of the Plan with respect to the permissible tax withholding rate for common stock of the Company to be delivered or withheld to pay a recipient’s required tax obligations.
NOW, THEREFORE, BE IT RESOLVED, that the Plan hereby is amended, effective as of February 8, 2017, as follows:

1.
The last sentence of Section 15(d) of the Plan is hereby amended to add the following phrase at the end thereof:

“(or, if permitted by the Company, such other rate as will not cause adverse accounting consequences under the accounting rules then in effect and is permitted under applicable IRS withholding rules).”
****




IN WITNESS WHEREOF, the Board has caused this instrument to be executed by its duly authorized agent as of February 8, 2017.


 
PANDORA MEDIA, INC.
 
 
 
 
 
By:
/s/ Steve Bené
 
Name:
Steve Bené
 
Title:
General Counsel and Corporate Secretary


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