SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BRILLIANT DIGITAL ENTERTAINMENT, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
95-4592204
(I.R.S. Employer Identification No.)
6355 TOPANGA CANYON BOULEVARD, SUITE 513
WOODLAND HILLS, CALIFORNIA 91367
(Address of Principal Executive Offices) (Zip Code)
BRILLIANT DIGITAL ENTERTAINMENT, INC. 1996 STOCK OPTION PLAN
(Full Title of the Plan)
MARK DYNE, CHAIRMAN AND CHIEF EXECUTIVE OFFICER
BRILLIANT DIGITAL ENTERTAINMENT, INC.
6355 TOPANGA CANYON BOULEVARD, SUITE 513
WOODLAND HILLS, CALIFORNIA 91367
(Name and Address of Agent for Service)
(818) 346-3653
(Telephone Number, Including Area Code, of Agent for Service)
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Copies to:
MURRAY MARKILES, ESQ.
TROOP MEISINGER STEUBER & PASICH, LLP
10940 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 824-7000
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<C> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share(1) Price(1) Registration Fee
Common Stock 1,080,000 Shares $3.75 $4,050,000 $1,227
<FN>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act of 1933, as amended, and
based upon the average of the high and low prices of the Common Stock on the
American Stock Exchange on December 16, 1996.
</FN>
</TABLE>
PAGE # 1
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended, and the
Note to Part I of Form S-8.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
(a) Registrant's Registration Statement on Form S-1, as amended, File No.
333-12163.
(b) Pages 62 through 64 from Registrant's Amendment No. 4 to Registration
Statement on Form S-1, File No. 333-12163, containing the discussion
set forth under the caption "Description of Capital Stock."
All documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 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 of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The securities to be offered are registered under Section 12 of the
Exchange Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Registrant's Certificate of Incorporation and its Bylaws provide for the
indemnification by the Registrant of each director, officer and employee of the
Registrant to the fullest extent permitted by the Delaware General Corporation
Law, as the same exists or may hereafter be amended. Section 145 of the
Delaware General Corporation Law provides in relevant part that a corporation
may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably
PAGE # 2
<PAGE>
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe such person's conduct was unlawful.
In addition, Section 145 provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper. Delaware law further provides that nothing
in the above-described provisions shall be deemed exclusive of any other rights
to indemnification or advancement of expenses to which any person may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
Registrant's Certificate of Incorporation also provides that a director
of the Registrant shall not be liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director. Section 102(b)(7)
of the Delaware General Corporation Law provides that a provision so limiting
the personal liability of a director shall not eliminate or limit the liability
of a director for, among other things: breach of the duty of loyalty; acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of the law; unlawful payment of dividends; and transactions
from which the director derived an improper personal benefit.
The Registrant has entered into separate but identical indemnity
agreements (the "Indemnity Agreements") with each director of the Registrant
and certain of its officers (the "Indemnitees"). Pursuant to the terms and
conditions of the Indemnity Agreements, the Registrant has agreed to indemnify
each Indemnitee against any amounts which he or she becomes legally obligated
to pay in connection with any claim against him or her based upon any action or
inaction which he or she may commit, omit or suffer while acting in his or her
capacity as a director and/or officer of the Registrant or its subsidiaries;
provided, however, that Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Registrant and, with respect to any criminal action, had no reasonable
cause to believe Indemnitee's conduct was unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Brilliant Digital Entertainment, Inc. 1996 Stock Option Plan -
incorporated by reference to Exhibit 10.1 of Registrant's
Registration Statement on Form S-1, File No. 333-12163, dated
September 17, 1996.
4.2 Form of Registrant's Stock Option Agreement (Non-Statutory Stock
Option) - incorporated by reference to Exhibit 10.2 of Registrant's
Registration Statement on Form S-1, File No. 333-12163, dated
September 17, 1996.
4.3 Form of Registrant's Stock Option Agreement (Incentive Stock Option)-
incorporated by reference to Exhibit 10.3 of Registrant's
Registration Statement on Form S-1, File No. 333-12163, dated
September 17, 1996.
5.1 Opinion of Troop Meisinger Steuber & Pasich, LLP regarding validity
of securities.
23.1 Consent of Troop Meisinger Steuber & Pasich, LLP (included in
Exhibit 5.1).
PAGE # 3
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23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included as part of the Signature Page of this
Registration Statement).
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and
of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by the 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, Registrant will, unless in the
opinion of the counsel the matter has been settled by controlling precedent,
submit to the appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
PAGE # 4
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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 Los Angeles, State of California, on this 19th
day of December 1996.
BRILLIANT DIGITAL ENTERTAINMENT, INC.
(Registrant)
By: /s/ Michael Ozen
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MICHAEL OZEN, CHIEF FINANCIAL OFFICER
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Mark Dyne and Diana Maranon, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the foregoing, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either 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 below by the following persons in the
capacities and on the date indicated.
<TABLE>
<C> <C> <C>
SIGNATURE TITLE DATE
/s/ Mark Dyne Chief Executive Officer and December 19, 1996
- --------------------- Chairman of the Board of
MARK DYNE Directors
/s/ Kevin Bermeister President and Director December 10, 1996
- --------------------
KEVIN BERMEISTER
/s/ Michael Ozen Chief Financial Officer December 19, 1996
- --------------------- (Principal Financial and
MICHAEL OZEN Accounting Officer)
/s/ Diana Maranon Secretary and Director December 5, 1996
- ---------------------
DIANA MARANON
/s/ Mark Miller Vice President, Operations December 10, 1996
- ---------------------- and Production and
MARK MILLER Director
/s/ Gary Barber Director December 5, 1996
- ----------------------
GARY BARBER
/s/ Ray Musci Director December 6, 1996
- -----------------------
RAY MUSCI
/s/ Garth Saloner Director December 7, 1996
- -----------------------
GARTH SALONER
/s/ Jeff Scheinrock Director December 7, 1996
- -----------------------
JEFF SCHEINROCK
</TABLE>
PAGE # 5
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<TABLE>
<CAPTION>
EXHIBIT INDEX
<C> <C> <C>
EXHIBIT NO. EXHIBIT DESCRIPTION Sequentially
NUMBERED PAGE
4.1 Brilliant Digital Entertainment, Inc. 1996 Stock
Option Plan - incorporated by reference to Exhibit
10.1 of the Registrant's Registration Statement on
Form S-1, File No. 333-12163, dated
September 17, 1996.
4.2 Form of Registrant's Stock Option Agreement
(Non-Statutory Stock Option) - incorporated by
reference to Exhibit 10.2 of Registrant's
Registration Statement on Form S-1, File
No. 333-12163, dated September 17, 1996.
4.3 Form of Registrant's Stock Option Agreement
(Incentive Stock Option) - incorporated by
reference to Exhibit 10.3 of Registrant's
Registration Statement on Form S-1,
File No. 333-12163, dated September 17, 1996.
5.1 Opinion of Troop Meisinger Steuber & Pasich LLP
regarding validity of securities.
23.1 Consent of Troop Meisinger Steuber & Pasich
(included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included as part of the
Signature Page of this Registration Statement).
</TABLE>
Exhibit 5.1
[LETTERHEAD OF TROOP MEISINGER STEUBER & PASICH]
December 20, 1996
Brilliant Digital Entertainment, Inc.
6355 Topanga Canyon Boulevard, Suite 513
Woodland Hills, CA 91367
Ladies/Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") to which this letter is attached as Exhibit
5.1 filed by Brilliant Digital Entertainment, Inc., a Delaware corporation (the
"Company"), in order to register under the Securities Act of 1933, as amended
(the "Act"), 1,080,000 shares of Common Stock, par value $0.001 per share (the
"Shares"), of the Company issuable pursuant to the Company's 1996 Stock Option
Plan (the "Plan").
We are of the opinion that the Shares have been duly authorized and
upon issuance and sale in conformity with and pursuant to the Plan, the Shares
will be validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an Exhibit to the
Registration Statement and to the use of our name in the Prospectus
constituting a part thereof.
Respectfully submitted,
/s/ TROOP MEISINGER STEUBER & PASICH, LLP
TROOP MEISINGER STEUBER & PASICH, LLP
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 dated December 20, 1996 pertaining to the 1996 Stock Option Plan of
Brilliant Digital Entertainment, Inc. of our reports dated September 13, 1996
with respect to the consolidated financial statements of Brilliant Digital
Entertainment, Inc. included in its Registration Statement on Form S-1 dated
November 22, 1996, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
December 19, 1996
Los Angeles, California
