As filed with the Securities and Exchange Commission on December 23, 1998.
Registration No. 33-_________
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 91311-6089
(Address of principal executive offices)
1998 INCENTIVE PLAN
(Full title of the plan)
Cheryl Lee, Esq.
Chief Administrative Officer, General Counsel and Secretary
9333 Oso Avenue
Chatsworth, California 91311-6089
(818) 407-9100
(Name, address, and telephone number, including area code, of
agent for service)
___________________
Copy To:
Diana L. Walker, Esq.
O'Melveny & Myers LLP
400 South Hope Street
Los Angeles, California 90071-2889
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Amount to Proposed Proposed Amount of
securities be maximum maximum registration
to be registered offering aggregate fee
registered price per offering
unit price
<S> <C> <C> <C> <C>
Common 1,160,433 $5.81(2) $6,742,116(2) $1874(2)
Stock, no shares(1)
par value
(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(c) under the Securities Act of 1933, as amended, 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 reported on the Nasdaq
National Market System on December 18, 1998, a date within
five business days prior to the filing of this Registration
Statement.
</TABLE>
The Exhibit Index included in this Registration Statement follows
the signature page.
<PAGE>
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 of the Securities Act of 1933.
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.
<PAGE>
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, 1998;
(b) Company Quarterly Reports on Form 10-Q for the
quarters ended June 30, 1998 and September 30, 1998 and all
other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act") since the end of the fiscal
year covered by the Annual Report referred to above; 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 to Form 8-A on Form 8-A/A filed with the
Commission on April 21, 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
Cheryl Lee, Administrative Officer and General Counsel
of the Company, owns options and other rights in respect of
157,159 and 12,761 shares of Common Stock of the Company,
respectively.
Item 6. Indemnification of Directors and Officers
The Company's Restated 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 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 Section 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 agents of the Company to the fullest extent permitted under
California law and the Company's Articles of Incorporation. The
Company's Bylaws establish that, for purposes of Article VI
(Indemnification) of the Bylaws, an agent is any person who is or
was a director, officer, employee or other agent of the Company,
or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or was a director,
officer, employee or agent of a predecessor corporation of the
Company or of another enterprise at the request of such
predecessor corporation.
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
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.
Item 8. Exhibits
See the attached Exhibit Index.
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,
as amended (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 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 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 21,
1998.
IMAGE ENTERTAINMENT, INC.
By: /s/ Martin W. Greenwald
Martin W. Greenwald
Chairman of the Board, Chief
Executive Officer, President and
Treasurer
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes
and appoints Martin W. Greenwald, Jeff Framer and Cheryl Lee his
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
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 or her 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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Martin W. Greenwald Chairman of the Board, December 21, 1998
Martin W. Greenwald Chief Executive
Officer, President and
Treasurer (Principal
executive officer)
/s/ Jeff M. Framer Chief Financial December 21, 1998
Jeff M. Framer Officer (Principal
financial and
accounting officer)
/s/ Stuart Segall Director December 21, 1998
Stuart Segall
/s/ Ira S. Epstein Director December 21, 1998
Ira S. Epstein
/s/ M. Trevenen Huxley Director December 21, 1998
M. Trevenen Huxley
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 Image Entertainment, Inc. 1998 Incentive Plan (the "Plan").
Filed as Exhibit A to the Company's Proxy Statement dated
July 29, 1998 and incorporated by reference herein.
4.2 Form of Performance Restricted Stock Unit Award Agreement.
Filed as Exhibit 10.16 to Amendment No. 2 to the Company's
Registration Statement on Form S-2 on Form S-2/A dated
November 30, 1998 and incorporated by reference herein.
4.3 Non-Qualified Stock Option Agreement dated as of July 22,
1998 between the Company and Stuart Segall. Filed as
Exhibit 10.9 to the Company's Registration Statement on
Form S-2 dated October 13, 1998 and incorporated by
reference herein.
4.4 Non-Qualified Stock Option Agreement dated as of September
17, 1998 between the Company and Mark Trevenen Huxley.
Filed as Exhibit 10.10 to the Company's Registration
Statement on Form S-2 dated October 13, 1998 and
incorporated by reference herein.
5. Opinion of General Counsel of Image Entertainment, Inc.
regarding the legality of the Common Stock to be issued.
23.1 Consent of Independent Accountants (KPMG Peat Marwick LLP).
23.2 Consent of General Counsel of Image Entertainment, Inc.
(included in Exhibit 5).
24. Powers of Attorney (included in this Registration Statement
under "Signatures").
<PAGE>
EXHIBIT 5
December 23, 1998
IMAGE ENTERTAINMENT, INC.
9333 Oso Avenue
Chatsworth, California 91311-6089
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I, as 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 1,160,433 shares of Common
Stock, no par value, to be issued pursuant to the 1998 Incentive
Plan (the "Plan").
I have examined the Company's Articles of Incorporation, Bylaws
and corporate minute books and the Plan. I have also examined
the records of corporate proceedings taken in connection with the
approval of the Plan and the issuance and sale of the Common
Stock to be issued pursuant to the exercise of options and
vesting of other share awards granted and to be granted under the
Plan.
Based upon such examination and upon such matters of fact and law
as I have deemed relevant, I am of the opinion that the shares of
Common Stock have been duly authorized by all necessary corporate
action on the part of the Company and, when issued in accordance
with such authorization and appropriate committee action under
the Plan, the provisions of the Plan and relevant agreements duly
authorized by and in accordance with the terms of the Plan, will
be validly issued, fully paid and nonassessable shares of Common
Stock.
I own options and other rights in respect of 157,159 and 12,761
shares of Company Common Stock, respectively.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ Cheryl Lee
Cheryl Lee, Esq.
General Counsel
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) and related Prospectus pertaining to the
1998 Incentive Plan of our report dated May 29, 1998, except for
Note 8, as to which the date is June 18, 1998, with respect to
the consolidated financial statements and schedules of Image
Entertainment, Inc. included in its Annual Report (Form 10-K) for
the year ended March 31, 1998 as filed with the Securities and
Exchange Commission.
/s/ KPMG Peat Marwick LLP
Los Angeles, California
December 21, 1998
