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As filed with the Securities and Exchange Commission on December 18, 1995.
Registration No. ________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
IMAGE ENTERTAINMENT, INC.
(Exact name of registrant as specified in its charter)
___________________
California 84-0685613
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9333 Oso Avenue
Chatsworth, California 91311
(818) 407-9100
(Address of principal executive offices)
1994 Eligible Directors Stock Option Plan
(Full title of the plan)
CHERYL LEE, ESQ.
IMAGE ENTERTAINMENT, INC.
9333 Oso Avenue
Chatsworth, California 91311
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (818) 407-9100
___________________
Copy to:
DIANA L. WALKER
O'MELVENY & MYERS
400 South Hope Street
Los Angeles, California 90071-2899
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 275,000/(1)/ $8.00/(2)/ $2,200,000/(2)/ $759/(2)/
(no par value shares
per share)
- ---------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement covers, in addition to the number of shares of
Common Stock stated above, options and other rights to purchase or acquire
the shares of Common Stock covered by the Prospectus and, pursuant to Rule
416, an additional indeterminate number of shares which by reason of
certain events specified in the Plan may become subject to the Plan.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in the
aggregate, and the registration fee were calculated based upon the average
of the high and low prices of the Common Stock as quoted on the NASDAQ
National Market on December 14, 1995, a date within five buiness days prior
to the filing of this Registration Statement.
THE EXHIBIT INDEX INCLUDED IN THIS REGISTRATION STATEMENT IS AT PAGE 8.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Securities and Exchange Commission Rule 428(b)(1).
Such documents need not be filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents, which include the statement
of availability required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part
II hereof), taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Image Entertainment, Inc. (the "Company")
filed with the Securities and Exchange Commission are incorporated herein by
reference:
(a) Annual Report on Form 10-K for the Company's fiscal year ended March
31, 1995.
(b) Quarterly Reports on Form 10-Q for the quarters ended June 30 and
September 30, 1995; and
(c) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on April 21, 1983,
as amended by Amendment No. 1 on Form 8 filed on April 22, 1991, and any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into the prospectus and to be a part hereof from the
date of filing of such documents. "Any statement contained herein or in a
document, all or a portion of which is 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
such statement so modified or superseded shall not be deemed, except as so
modified or amended, to constitute a part of this Registration Statement."
ITEM 4. DESCRIPTION OF SECURITIES
The Company's Common Stock, no par value (the "Common Stock") is
registered pursuant to Section 12 of the Exchange Act, and, therefore, the
description of securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation contain a provision which
eliminates the liability of directors for monetary damages to the fullest extent
permissible under California law. The General Corporation Law of California (the
"Law") (i) eliminates the liability of directors for
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monetary damages in an action brought by a shareholder in the right of the
Company (referred to herein as a "derivative action") or by the Company for
breach of a director's duties to the Company and its shareholders and (ii)
authorizes the Company to indemnify directors and officers for monetary damages
for all acts or omissions committed by them in their respective capacities;
provided, however, that liability is not limited nor may indemnification be
provided for (a) acts or omissions that involve intentional misconduct or
knowing and culpable violation of law, (b) for acts or omissions that a director
or officer believes to be contrary to the best interests of the Company or its
shareholders or that involve the absence of good faith on the part of a director
or officer seeking indemnification, (c) for any transaction from which a
director or officer derives an improper personal benefit, (d) for acts or
omissions that show a reckless disregard for the director's or officer's duty to
the Company or its shareholders in circumstances in which such person was aware,
or should have been aware, in the ordinary course of performing his duties, of a
risk of serious injury to the Company or its shareholders, (e) for acts or
omissions that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's or officer's duty to the Company or its
shareholders, and (f) for liabilities arising under Section 310 (contracts in
which a director has material financial interest) and 316 (certain unlawful
dividends, distributions, loans and guarantees) of the Law. In addition, the
Company may not indemnify directors and officers in circumstances in which
indemnification is expressly prohibited by Section 317 of the Law.
The Bylaws of the Company provide that indemnification for directors
and officers must be provided to the fullest extent permitted under California
law and the Company's Articles of Incorporation. The Company has entered into
indemnification agreements with its directors and officers which require that
the Company indemnify such directors and officers in all cases to the fullest
extent permitted by applicable provisions of the Law. The Company also
maintains a directors' and officers' liability insurance policy insuring
directors and officers of the Company. This policy insures directors and
officers against the cost of defense, settlement or payment of a judgment under
certain circumstances and includes securities-related coverage.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
5 Opinion of General Counsel of Image Entertainment, Inc.
Filed herewith.
10.1 Image Entertainment, Inc. 1994 Eligible Directors Stock Option
Plan (the "Plan"). Incorporated by reference to Exhibit 10.4
------
of the Company's Annual Report on Form 10-K for the year ended
March 31, 1995 and filed as Exhibit A to the Company's Proxy
Statement dated September 15, 1995.
10.2 Form of Option Agreement between the Company and Eligible
Directors. Incorporated by reference to Exhibit 10.4 of the
Company's Annual Report on Form 10-K for the year ended March
31, 1995.
23.1 Consent of General Counsel of Image Entertainment, Inc.
(included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP. Filed herewith.
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 "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement;
and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
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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 Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities 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
Securities 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 Chatsworth, State of California, on December 18,
1995.
IMAGE ENTERTAINMENT, INC.
By: /s/MARTIN W. GREENWALD
----------------------
Martin W. Greenwald
Its: Chairman of the Board, Chief Executive
Officer, President and Treasurer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Martin
W. Greenwald, Jeff Framer, and Cheryl Lee his or her true and lawful attorneys-
in-fact and agents, each acting alone, with full powers of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and 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
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Commission, granting unto said attorneys-in-fact and agents, each acting alone,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, each acting alone, or
his substitute or 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 dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ MARTIN W. GREENWALD Chairman of the Board, Chief December 18, 1995
- ------------------------- Executive Officer, President and
Martin W. Greenwald Treasurer (Principal executive
officer)
/s/ JEFF M. FRAMER Chief Financial Officer December 18, 1995
- ------------------------- (Principal financial and
Jeff Framer accounting officer)
/s/ STUART SEGALL Director December 18, 1995
- -------------------------
Stuart Segall
/s/ IRA S. EPSTEIN Director December 18, 1995
- -------------------------
Ira S. Epstein
/s/ RUSSELL HARRIS Director December 18, 1995
- -----------------
Russell Harris
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EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
5 Opinion of General Counsel of Image Entertainment, Inc. Filed
herewith.
10.1 Image Entertainment, Inc. 1994 Eligible Directors Stock Option Plan
(the "Plan"). Incorporated by reference to Exhibit 10.4 of the
Company's Annual Report on Form 10-K for the year ended March 31,
1995 and filed as Exhibit A to the Company's Proxy Statement dated
September 15, 1995.
10.2 Form of Option Agreement between the Company and Eligible Directors.
Incorporated by reference to Exhibit 10.4 of the Company's Annual
Report on Form 10-K for the year ended March 31, 1995.
23.1 Consent of General Counsel of Image Entertainment, Inc. (included in
Exhibit 5). Filed herewith.
23.2 Consent of KPMG Peat Marwick LLP. Filed herewith.
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December 18, 1995 EXHIBIT 5
IMAGE ENTERTAINMENT, INC.
9333 Oso Avenue
Chatsworth, California 91311
Re: S-8 STATEMENT/S-3 REOFFER PROSPECTUS COVERING 275,000 ADDITIONAL SHARES
UNDERLYING OPTIONS ISSUABLE UNDER THE COMPANY'S 1994 ELIGIBLE DIRECTORS
STOCK OPTION PLAN
Ladies and Gentlemen:
I, as Chief Administrative Officer & General Counsel of Image Entertainment,
Inc., a California corporation (the "Company"), have examined the Registration
-------
Statement on Form S-8 (the "Registration Statement") which the Company intends
----------------------
to file with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
275,000 shares of the Company's common stock, no par value (the "Common Stock"),
------------
all of which are issuable upon exercise of options that have been or are to be
granted pursuant to the Image Entertainment, Inc. 1994 Eligible Directors Stock
Option Plan (the "Plan").
----
I have examined the Company's Articles of Incorporation, Bylaws and corporate
minutes books and the Plan. I have also examined the records of corporate
proceedings taken in connection the approval of the Plan and the issuance and
sale of the Common Stock to be issued pursuant to the exercise of options
granted and to be granted under the Plan.
Based upon the foregoing examinations and upon applicable laws, I am of the
opinion that, subject to compliance with the applicable federal and state
securities laws, the Common Stock, when offered, sold and paid for in accordance
with the authorization of the Plan and pursuant to the exercise of options
granted under the Plan, will be legally issued, fully paid and non-assessable.
I hereby consent to the use of this opinion as an exhibit to the Registration
Statement.
Sincerely,
/S/CHERYL LEE, ESQ.
Cheryl Lee, Esq.
Chief Aministrative Officer & General Counsel
<PAGE>
EXHIBIT 23.2
Consent of Independent Accountants
----------------------------------
The Board of Directors
Image Entertainment, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Image Entertainment, Inc. of our report dated June 6, 1995, except for
note 14 which is dated as of June 8, 1995, relating to the balance sheets of
Image Entertainment, Inc. as of March 31, 1995 and 1994, and the related
statements of operations, shareholders' equity and cash flows for each of the
years in the three-year period ended March 31, 1995, and the related schedules,
which report appears in the March 31, 1995, annual report on Form 10-K of Image
Entertainment, Inc. We also consent to the reference to our firm under the
heading "Experts" in the registration statement.
/s/ KPMG PEAT MARWICK LLP
Los Angeles, California
December 15, 1995
