AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 4, 1995
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE TODD-AO CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 13-1679856
(State of incorporation) (I.R.S. Employer Identification Number)
172 GOLDEN GATE AVENUE
SAN FRANCISCO, CALIFORNIA 94102
(Address, including zip code of Registrant's principal executive offices)
1995 STOCK OPTION PLAN
(Full titles of Plans)
SILAS R. CROSS
VICE PRESIDENT/TREASURER
THE TODD-AO CORPORATION
900 N. SEWARD STREET
LOS ANGELES, CALIFORNIA 90038
PHONE (213) 962-4020
(Name, address and telephone number, including area code,
of agent for service)
Copy to:
DAN MALSTROM, ESQ.
ATTORNEY AT LAW
8 VIOX WAY
SAN RAFAEL, CALIFORNIA 94901-2660
PHONE (415) 485-9251
CALCULATION OF REGISTRATION FEE
Proposed
Proposed Maximum
Title of Each Maximum Aggregate Amount of
Class of Securities Amount to be Offering Price Offering Registration
to be Registered Registered Per Share(1) Price(1) Fee
Class A
Common Stock 600,000 $7.25 $4,350,000 $1,500.00
(1) This calculation is made solely for the purpose of determining the amount
of the registration fee and is made pursuant to Rule 457(h) based upon the
last sale price of the Class A Common Stock as reported on the Nasdaq
National Market on August 3, 1995.
<PAGE>
Page 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE
The following documents and information heretofore filed with the Securities
and Exchange Commission by The Todd-AO Corporation (the "Company") are hereby
incorporated by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended August
31, 1994, filed pursuant to Section 13(a) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended
November 30, 1994, February 28, 1995 and May 31, 1995, filed pursuant to
Section 13(a) of the Exchange Act.
(c) The description of the Company's Class A Common Stock contained in the
Company's Registration Statement on Form S-2, as filed on February 2, 1988
(Registration No. 33-19279).
(d) All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation limits the liability of directors
to the maximum extent permitted by Delaware law. Delaware law provides that
directors of a corporation will not be personally liable for monetary damages
for breach of their fiduciary duties as directors, except for liability (i)
for any breach of their duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
<PAGE>
Page 3
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
The Company's Bylaws provide that the Company shall indemnify its directors
and executive officers and may indemnify its other officers and employees and
other agents to the fullest extent permitted by Delaware law. The Company's
Bylaws also permit it to secure insurance on behalf of any officer, director,
employee or other agent for any liability arising out of his or her actions in
such capacity, regardless of whether the Bylaws would permit indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description
4.1** 1995 Stock Option Plan, as adopted on February 7, 1995.
4.2* Form of Incentive Stock Option Agreement under the
1995 Stock Option Plan.
4.3.* Form of Nonqualified Stock Option Agreement under the
1995 Stock Option Plan.
5.1* Opinion of Dan Malstrom, Attorney at Law, as to legality of
securities being registered.
23.1* Consent of Deloitte & Touche LLP
23.2* Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see pages 4-5).
--------------------------
* Filed herewith electronically.
** Incorporated by reference from the Company's Proxy Statement dated January 3,
1995.
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes:
<PAGE>
Page 4
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any
material information with respect to the plans 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, as amended (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.
(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) That, for purposes of determining any liability under the Securities Act,
each filing of the Company'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
Company pursuant to the Delaware Corporation Law, the Certificate of
Incorporation of the Company, the Bylaws of the Company, or
otherwise, the Company 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 Company of expenses incurred or paid by a director, officer
or controlling person of the Company 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 hereunder, the
Company 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 Todd-AO
Corporation, a corporation organized and existing under the laws of the State
of Delaware, 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, on July 14, 1995.
<PAGE>
Page 5
THE TODD-AO CORPORATION
By: /s/ Salah M. Hassanein
Salah M. Hassanein
President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Salah M. Hassanein, Silas R. Cross
and Coburn T. Haskell, jointly and severally, acting alone or together,
as his attorneys-in-fact, each with the power of substitution, for him in
any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said attorneys-in-
fact, or his substitute or substitutes, may 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 dates indicated.
Signature Title Date
/s/Robert A.
Naify Co-Chairman and July 12, 1995
(Robert A. Co-Chief Executive Officer
(Naify) (Principal Executive Officer)
/s/Silas R.
Cross Vice President/Treasurer July 13, 1995
(Silas R.
Cross)
/s/Coburn T. Vice President/Controller July 13, 1995
Haskell
(Coburn T. Haskell)
Director July , 1995
(A. C.
Childhouse)
/s/J. R.
DeLang Director July 17, 1995
(J. R.
DeLang)
<PAGE>
Page 6
/s/Richard C.
Hassanein Director July 12, 1995
(Richard C.
Hassanein)
/s/ Salah M.
Hassanein Director July 14, 1995
(Salah M.
Hassanein)
/s/Herbert L.
Hutner Director July 11, 1995
(Herbert L.
Hutner)
/s/ Christopher D. Director July 13, 1995
Jenkins
(Christopher D.
Jenkins)
Director July , 1995
(Marshall
Naify)
Director July , 1995
(Michael S.
Naify)
/s/ Robert
J. Naify Director July 12, 1995
(Robert J.
Naify)
/s/ Zelbie
Trogden Director July 12, 1995
(Zelbie
Trogden)
Exhibit 4.2
Page 1
The Todd-AO Corporation
INCENTIVE STOCK OPTION AGREEMENT
1995 Stock Option Plan
BASIC TERMS
Name of Optionee:
Number of Class A Shares covered by Option:
(See Section 3 of the Administrative Provisions)
Date of Grant:
Exercise Price:
(See Sections 2 and 3 of the Administrative Provisions)
Vesting:
Eligibility Date Number of Shares
Total
(See Sections 4 and 5 of the Administrative Provisions)
First Exercise Date:
Expiration Date:
Signatures:
The Basic Terms set forth above and the attached Administrative Provisions
(6 pages total) together constitute the Incentive Stock Option Agreement
between the Optionee and the Company. Subject to the terms and conditions
therein contained, the Company hereby grants, and the Optionee hereby
accepts, a stock option pertaining to shares of the Company's Class A
Common Stock.
The Todd-AO Corporation Optionee:
Silas R. Cross
Vice President/Treasurer Printed Name:
<PAGE>
Page 2
INCENTIVE STOCK OPTION AGREEMENT
1995 Stock Option Plan
Administrative Provisions
1. DEFINITIONS. As used in the Basic Terms and the Administrative Provisions,
the following terms have the indicated meanings:
1.1. Act. "Act" shall mean the Securities Act of 1933, as amended.
1.2. Code. "Code" shall mean the Internal Revenue Code of 1986,
as amended.
1.3. Company. "Company" shall include The Todd-AO Corporation
and any of its subsidiary corporations which meet the definition set forth in
Section 425 (f) of the Code.
1.4. Committee. "Committee" shall mean the Committee appointed by
the Board of Directors to administer the Plan.
1.5. Exchange Act. "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
1.6. Incentive Options. "Incentive options" shall be those options
described in Section 422(a) of the Code.
1.7. Non-Qualified Options. "Non-qualified options" shall mean options
which are not incentive options.
1.8. Plan. "Plan" shall mean the Company's 1986 Stock Option Plan,
as amended.
1.9. Shares. Unless the context otherwise requires, "shares" shall
mean the shares of the Company's Class A Stock.
2. EXERCISE PRICE. The exercise price per share shown in the Basic Terms
is hereby acknowledged to be at least 100% of the fair market value of the
Class A Common Stock at the date of grant.
3. ADJUSTMENTS. Adjustments to the shares covered by the option and the
exercise price shall be made as follows:
3.1. Recapitalizations. The number of shares of Stock covered by the
option and the exercise price shall be proportionately adjusted for any
increase or decrease in the number of issued and outstanding shares of
Common Stock resulting from: (i) a subdivision or consolidation of shares;
(ii) the payment of a stock dividend of more than 2%; or (iii) any other
increase or decrease of more than 2% in the number of issued and outstanding
shares of Common Stock effected without receipt of consideration
by the Company.
<PAGE>
Page 3
3.2. Rights Offerings. In the event the Company shall issue rights,
warrants or options to its shareholders on a pro rata basis entitling them
to purchase shares of Class A or Class B Stock at a price less than the
fair market value of such Stock, the option price shall be proportionately
reduced (and/or the number of shares subject to the option proportionately
increased) to reflect as nearly as practicable the benefit that the
option holder would have received had the option been exercised immediately
prior to the record date for such rights, warrants or options.
3.3. Reorganizations. If any merger, consolidation or similar transaction
in which the Company is the surviving corporation (and which is not a Change
in Control as hereinafter defined) shall affect any outstanding option under
the Plan, the Committee shall take such action as is equitable or appropriate
to substitute a new option for such affected option and to make the new
option equivalent to the affected option as nearly as practicable.
3.4. Changes in Control-Definition. A "Change in Control" shall be deemed
to have occurred if:
(a) there shall be consummated (i) any reorganization, consolidation
or merger of the Company in which the Company is not the continuing or
surviving corporation, or (ii) any sale or other transfer of all or
substantially all of the Company's assets (in one transaction or a series
of related transactions); or
(b) the stockholders of the Company shall have approved a plan or
proposal for the liquidation or dissolution of the Company; or
(c) there shall be consummated a sale to any person or group (as defined
in the Securities Exchange Act of 1934) of Class A and/or Class B shares
entitled to cast more than 50% of the total combined votes of all outstanding
Class A and Class B Shares; or
(d) the Board of Directors of the Company shall otherwise have
determined that a Change in Control has otherwise occurred.
3.5. Changes in Control--Effect. A Change in Control shall cause each
outstanding option to terminate effective one hundred eighty days after
the consummation thereof, unless any agreement relating to a Change in
Control shall otherwise provide. Notwithstanding the foregoing, agreements
relating solely to a transaction described in paragraph (c) of Section 3.6
may not terminate an outstanding option earlier than one hundred eighty days
after the consummation thereof unless the optionee consents to an earlier
termination. Effective concurrently with the Change in Control (whether or
not the option is terminated or affected by the Change in Control) each
optionee shall be entitled to exercise his option in full without regard
to any limitations on exercisability and such option shall be considered
fully vested.
3.6. Committee's Authority. The Committee, in its discretion, shall make
such other and further adjustments are equitable and appropriate with respect
to any transaction affecting the capitalization of the Company.
<PAGE>
Page 4
3.7. Company's Rights Unimpaired. Nothing contained in this agreement
shall in any way affect the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell,
or transfer all or any part of its business or assets.
4. VESTING. The Optionee will become eligible to exercise the option in
installments as set forth in the Basic Terms. Except as specifically
otherwise provided herein, if the Optionee ceases to serve as an employee
prior to the eligibility date of an installment, the option shall terminate
with respect to that installment (without pro ration for fractional years of
service) and all subsequent installments. After the optionee has
become eligible to exercise an installment, the right to exercise with
respect to that installment shall remain in effect until the expiration or
sooner termination of the option. No partial exercise will be permitted for
less than ten shares.
5. TERMINATION OF SERVICES.
5.1. Termination on of Relationship-Generally. In the event that the
Optionee shall cease to be an employee of the Company for any reason other
than his death or disability, his option shall be exercisable, to the
extent it was exercisable at the date he ceased to be an employee, for a
period of three months after such date and prior to the date on which the
option expires by its terms. If not so exercised, the option shall
terminate.
5.2. Death or Disability. If the Optionee dies or becomes permanently
disabled within the meaning of Section 22(e)(3) of the Code while an employee
of the Company, or within the three-month period after termination of such
status during which he is permitted to exercise an option in accordance
with Section 11.1, such option may, to the extent it was exercisable at the
time of death or disability, be exercised for a period not to exceed the
lesser of: (i) one year after the optionee's death or disability; or
(ii) the period prior to the date on which the option expires by its terms.
In the event of death, the option may be exercised by any person or persons
designated by the Optionee on a Beneficiary Designation Form adopted by the
Committee for such purpose, or, if there is no effective Beneficiary
Designation Form on file with the Committee, by the executors or
administrators of the Optionee's estate or by any person or persons
who shall have acquired the option directly from the Optionee by his will
or the applicable law of descent and distribution. As a condition to
acquiring any rights under this Agreement, any such successor to the
Optionee shall execute such documents as the Company shall reasonably
request.
<PAGE>
Page 5
6. COMPLIANCE WITH SECURITIES LAWS. Notwithstanding anything to the
contrary herein, the option shall not be exercisable until the completion of
any listing, registration or qualification procedure with any securities
exchange or federal or state governmental authority which the Committee
deems, in its sole discretion, necessary or desirable. Unless the shares
issuable upon exercise of an option have been registered under the Act, the
option holder shall, as a condition of issuance, provide written
representations satisfactory to the Company's counsel to the effect that the
shares are being acquired for the optionee's own account as an investment
and not with a view to, or for sale in connection with, the distribution of
any such shares and that no transfers of the shares shall be made except in
compliance with the Act and any rules and regulations promulgated thereunder.
A legend to this effect may be endorsed upon unregistered shares so issued.
7. TERMINATION DATE. Notwithstanding any other provision of this Agreement,
this option is not exercisable after August 31, 2004.
8. MANNER OF EXERCISE. This option may be exercised by giving written notice
of exercise to the Company in such form as the Committee may from time to time
determine, specifying the number of shares to be purchased and accompanied by
full payment of the exercise and the amount of any income or other tax the
Company is required by law to withhold by reason of such exercise. The
exercise price shall be payable in cash or, in the discretion of the
Committee, in shares of Common Stock or in a combination of cash and such
shares. For purposes of computing the exercise price, shares surrendered
will be valued at their fair market value on the date of exercise.
9. RESTRICTIONS ON TRANSFER. This option shall be exercisable during the
Optionee's lifetime only by the Optionee and shall be nontransferable by the
Optionee otherwise than by will, the laws of descent and distribution or
pursuant to "qualified domestic relations orders" as defined in the Code.
Except as aforesaid, this option shall not be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to sale under execution, attachment or
similar process. Upon any attempt to transfer, assign, pledge or otherwise
dispose of the option contrary to the provisions hereof, or upon any
attempted sale under any execution, attachment or similar process, the
option and all associated rights shall immediately become null and void.
10. DISQUALIFYING DISPOSITIONS. Optionee acknowledges that under current
provisions of the Code: (i) no taxable income is recognized upon exercise of
an incentive stock option provided that the Shares are held at least one year
after exercise and are not disposed of within two years from the date of
grant; (ii) the amount by which the fair market value of the Shares at the
time of exercise exceeds the exercise price will be an item of tax preference
which may be subject to the alternative minimum tax; (iii) any gain or loss
recognized upon the disposition of such shares by the optionee after the one
year and two-year periods described above will be treated as long-term capital
gain or loss; and (iv) any sales or dispositions of the Shares prior to the
expiration of such one year and two year periods will require the Optionee
to recognize taxable income equal to the amount by which the fair market
value of the Shares (at the time of exercise) exceeds the exercise price, in
addition to any other income which may be recognizable because
of such transactions.
<PAGE>
Page 6
11. NO RIGHTS AS SHAREHOLDER. Neither the Optionee nor any successor shall
have any rights or privileges as a shareholder of the Company with respect to
any shares issuable upon the exercise of the option prior to the issuance of
a stock certificate representing such shares.
12. INDEPENDENCE OF RELATIONSHIP. Nothing in this agreement shall constitute
an employment contract or be construed as limiting in any respect whatsoever
the rights of the Company to terminate or change the terms of the employment
of the Optionee, at any time for any reason whatsoever, with or without
good cause.
13. INTERPRETATION BY COMMITTEE. The Committee shall have the power to
interpret this Agreement and adopt procedures for its administration. All
actions taken and all interpretations and determinations made by the
Committee in good faith shall be final and binding upon the Optionee, the
Company and all other interested persons. No member of the Committee shall
be personally liable for any action, determination or interpretation made
in good faith with respect to this Agreement.
14. MISCELLANEOUS.
14.1. Notices. Any notice to be given to the Company under the terms of
this Agreement shall be addressed to The Todd-AO Corporation at 900 Seward
Street, Hollywood, California 90038 or at such other address as the Company
may hereafter designate in writing. Any notice to be given to the Optionee
shall be addressed to the Optionee at the address shown by the Company's
personnel records or at any such other address as the Optionee may hereafter
designate in writing. Any such notice shall be deemed to have been duly
given when deposited in the U. S. Mail, registered or certified, postage
prepaid.
14.2. Successors. Subject to the limitations on exercisability and
transferability contained herein, this Agreement shall be binding upon
and inure to the benefit of the heirs, legal representatives, successors
and assigns of the parties hereto.
14.3. Severability. In the event that any provision in this Agreement
shall be invalid or unenforceable, such provision shall be severable from
this Agreement and its invalidity or unenforceability shall not be construed
to have any effect on the remaining provisions of this Agreement.
Exhibit 4.3
Page 1
The Todd-AO Corporation
NON-QUALIFIED STOCK OPTION AGREEMENT
1995 Stock Option Plan
BASIC TERMS
Name of Optionee:
Number of Class A Shares covered by Option:
(See Section 3 of the Administrative Provisions)
Date of Grant:
Exercise Price: $
(See Sections 2 and 3 of the Administrative Provisions)
Vesting:
Eligibility Date Number of Shares
Total
(See Sections 4 and 5 of the Administrative Provisions)
First Exercise Date:
Expiration Date: August 31, 2004
Signatures:
The Basic Terms set forth above and the attached Administrative
Provisions (5 pages total) together constitute the Non-Qualified Stock Option
Agreement between the Optionee and the Company. Subject to the terms and
conditions therein contained, the Company hereby grants, and the Optionee
hereby accepts, a stock option pertaining to shares of the Company's Class A
Common Stock.
The Todd-AO Corporation Optionee:
Silas R. Cross
Vice President/Treasurer Printed Name:
<PAGE>
Page 2
NON QUALIFIED STOCK OPTION AGREEMENT
1995 Stock Option Plan
Administrative Provisions
1. DEFINITIONS. As used in the Basic Terms and the Administrative Provisions,
the following terms have the indicated meanings:
1.1. Act. "Act" shall mean the Securities Act of 1933, as amended.
1.2. Code. "Code" shall mean the Internal Revenue Code of 1986,
as amended.
1.3. Company. "Company" shall include The Todd-AO Corporation
and any of its subsidiary corporations which meet the definition set forth in
Section 425 (f) of the Code.
1.4. Committee. "Committee" shall mean the Committee appointed by
the Board of Directors to administer the Plan.
1.5. Exchange Act. "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
1.6. Incentive Options. "Incentive options" shall be those options
described in Section 422(a) of the Code.
1.7. Non-Qualified Options. "Non-qualified options" shall mean options
which are not incentive options.
1.8. Plan. "Plan" shall mean the Company's 1986 Stock Option Plan,
as amended.
1.9. Shares. Unless the context otherwise requires, "shares" shall
mean the shares of the Company's Class A Stock.
2. EXERCISE PRICE. The exercise price per share shown in the Basic Terms
is hereby acknowledged to be at least 100% of the fair market value of the
Class A Common Stock at the date of grant.
3. ADJUSTMENTS. Adjustments to the shares covered by the option and the
exercise price shall be made as follows:
3.1. Recapitalizations. The number of shares of Stock covered by the
option and the exercise price shall be proportionately adjusted for any
increase or decrease in the number of issued and outstanding shares of
Common Stock resulting from: (i) a subdivision or consolidation of shares;
(ii) the payment of a stock dividend of more than 2%; or (iii) any other
increase or decrease of more than 2% in the number of issued and outstanding
shares of Common Stock effected without receipt of consideration
by the Company.
<PAGE>
Page 3
3.2. Rights Offerings. In the event the Company shall issue rights,
warrants or options to its shareholders on a pro rata basis entitling them
to purchase shares of Class A or Class B Stock at a price less than the
fair market value of such Stock, the option price shall be proportionately
reduced (and/or the number of shares subject to the option proportionately
increased) to reflect as nearly as practicable the benefit that the
option holder would have received had the option been exercised immediately
prior to the record date for such rights, warrants or options.
3.3. Reorganizations. If any merger, consolidation or similar transaction
in which the Company is the surviving corporation (and which is not a Change
in Control as hereinafter defined) shall affect any outstanding option under
the Plan, the Committee shall take such action as is equitable or appropriate
to substitute a new option for such affected option and to make the new
option equivalent to the affected option as nearly as practicable.
3.4. Changes in Control-Definition. A "Change in Control" shall be deemed
to have occurred if:
(a) there shall be consummated (i) any reorganization, consolidation
or merger of the Company in which the Company is not the continuing or
surviving corporation, or (ii) any sale or other transfer of all or
substantially all of the Company's assets (in one transaction or a series
of related transactions); or
(b) the stockholders of the Company shall have approved a plan or
proposal for the liquidation or dissolution of the Company; or
(c) there shall be consummated a sale to any person or group (as defined
in the Securities Exchange Act of 1934) of Class A and/or Class B shares
entitled to cast more than 50% of the total combined votes of all outstanding
Class A and Class B Shares; or
(d) the Board of Directors of the Company shall otherwise have
determined that a Change in Control has otherwise occurred.
3.5. Changes in Control--Effect. A Change in Control shall cause each
outstanding option to terminate effective one hundred eighty days after
the consummation thereof, unless any agreement relating to a Change in
Control shall otherwise provide. Notwithstanding the foregoing, agreements
relating solely to a transaction described in paragraph (c) of Section 3.6
may not terminate an outstanding option earlier than one hundred eighty days
after the consummation thereof unless the optionee consents to an earlier
termination. Effective concurrently with the Change in Control (whether or
not the option is terminated or affected by the Change in Control) each
optionee shall be entitled to exercise his option in full without regard
to any limitations on exercisability and such option shall be considered
fully vested.
3.6. Committee's Authority. The Committee, in its discretion, shall make
such other and further adjustments are equitable and appropriate with respect
to any transaction affecting the capitalization of the Company.
<PAGE>
Page 4
3.7. Company's Rights Unimpaired. Nothing contained in this agreement
shall in any way affect the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell,
or transfer all or any part of its business or assets.
4. VESTING. The Optionee will become eligible to exercise the option in
installments as set forth in the Basic Terms. Except as specifically
otherwise provided herein, if the Optionee ceases to serve as an employee,
consultant or director prior to the eligibility date of an installment, the
option shall terminate with respect to that installment (without
pro ration for fractional years of service) and all subsequent installments.
After the optionee has become eligible to exercise an installment, the right
to exercise with respect to that installment shall remain in effect until
the expiration or sooner termination of the option. No partial exercise
will be permitted for less than ten shares.
5. TERMINATION OF SERVICES.
5.1. Termination of Relationship-Generally. In the event that the Optionee
shall cease to be an employee, consultant or director of the Company for
any reason other than his death or disability, his option shall be
exercisable, to the extent it was exercisable at the date he ceased to be
an employee, consultant or director, for a period of three months
after such date and prior to the date on which the option expires by its
terms. If not so exercised, the option shall terminate.
5.2. Death or Disability. If the Optionee dies or becomes permanently
disabled within the meaning of Section 22(e)(3) of the Code while an employee
of the Company, or within the three-month period after termination of such
status during which he is permitted to exercise an option in accordance with
Section 11.1, such option may, to the extent it was exercisable at the time
of death or disability, be exercised for a period not to exceed the lesser
of: (i) one year after the optionee's death or disability; or (ii) the
period prior to the date on which the option expires by its terms. In the
event of death, the option may be exercised by any person or persons
designated by the Optionee on a Beneficiary Designation Form adopted by
the Committee for such purpose, or, if there is no effective Beneficiary
Designation Form on file with the Committee, by the executors or
administrators of the Optionee's estate or by any person or persons who
shall have acquired the option directly from the Optionee by his will
or the applicable law of descent and distribution. As a condition to
acquiring any rights under this Agreement, any such successor to the
Optionee shall execute such documents as the Company shall reasonably
request.
6. COMPLIANCE WITH SECURITIES LAWS. Notwithstanding anything to the
contrary herein, the option shall not be exercisable until the completion of
any listing, registration or qualification procedure with any securities
exchange or federal or state governmental authority which the Committee
deems, in its sole discretion, necessary or desirable. Unless the shares
<PAGE>
Page 5
issuable upon exercise of an option have been registered under the Act, the
option holder shall, as a condition of issuance, provide written
representations satisfactory to the Company's counsel to the effect that the
shares are being acquired for the optionee's own account as an investment
and not with a view to, or for sale in connection with, the distribution of
any such shares and that no transfers of the shares shall be made except in
compliance with the Act and any rules and regulations promulgated thereunder.
A legend to this effect may be endorsed upon unregistered shares so issued.
7. TERMINATION DATE. Notwithstanding any other provision of this Agreement,
this option is not exercisable after August 31, 2004.
8. MANNER OF EXERCISE. This option may be exercised by giving written notice
of exercise to the Company in such form as the Committee may from time to time
determine, specifying the number of shares to be purchased and accompanied by
full payment of the exercise and the amount of any income or other tax the
Company is required by law to withhold by reason of such exercise. The
exercise price shall be payable in cash or, in the discretion of the
Committee, in shares of Common Stock or in a combination of cash and such
shares. For purposes of computing the exercise price, shares surrendered
will be valued at their fair market value on the date of exercise.
9. RESTRICTIONS ON TRANSFER. This option shall be exercisable during the
Optionee's lifetime only by the Optionee and shall be nontransferable by the
Optionee otherwise than by will, the laws of descent and distribution or
pursuant to "qualified domestic relations orders" as defined in the Code.
Except as aforesaid, this option shall not be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to sale under execution, attachment or
similar process. Upon any attempt to transfer, assign, pledge or otherwise
dispose of the option contrary to the provisions hereof, or upon any
attempted sale under any execution, attachment or similar process, the
option and all associated rights shall immediately become null and void.
10. CERTAIN INCOME TAX CONSEQUENCES. Optionee acknowledges
that under current provisions of the Code, the amount by which the fair market
value of the Shares at the time of exercise exceeds the exercise price will
be taxable income to the Optionee in the year of exercise, whether or not
the Shares are resold.
11. NO RIGHTS AS SHAREHOLDER. Neither the Optionee nor any successor shall
have any rights or privileges as a shareholder of the Company with respect to
any shares issuable upon the exercise of the option prior to the issuance of
a stock certificate representing such shares.
12. INDEPENDENCE OF RELATIONSHIP. Nothing in this agreement shall constitute
an employment contract or be construed as limiting in any respect whatsoever
the rights of the Company to terminate or change the terms of the employment
of the Optionee, at any time for any reason whatsoever, with or without
good cause.
<PAGE>
Page 6
13. INTERPRETATION BY COMMITTEE. The Committee shall have the power to
interpret this Agreement and adopt procedures for its administration. All
actions taken and all interpretations and determinations made by the
Committee in good faith shall be final and binding upon the Optionee, the
Company and all other interested persons. No member of the Committee shall
be personally liable for any action, determination or interpretation made
in good faith with respect to this Agreement.
14. MISCELLANEOUS.
14.1. Notices. Any notice to be given to the Company under the terms of
this Agreement shall be addressed to The Todd-AO Corporation at 900 Seward
Street, Hollywood, California 90038 or at such other address as the Company
may hereafter designate in writing. Any notice to be given to the Optionee
shall be addressed to the Optionee at the address shown by the Company's
personnel records or at any such other address as the Optionee may hereafter
designate in writing. Any such notice shall be deemed to have been duly
given when deposited in the U. S. Mail, registered or certified, postage
prepaid.
14.2. Successors. Subject to the limitations on exercisability and
transferability contained herein, this Agreement shall be binding upon
and inure to the benefit of the heirs, legal representatives, successors
and assigns of the parties hereto.
14.3. Severability. In the event that any provision in this Agreement
shall be invalid or unenforceable, such provision shall be severable from
this Agreement and its invalidity or unenforceability shall not be construed
to have any effect on the remaining provisions of this Agreement.
Exhibit 5.1
Dan Malstrom
Attorney at Law
8 Viox Way
San Rafael, CA 94901-2660
Phone 415 485 9251
Fax 415 457 4477
August 4, 1995
The Todd-AO Corporation
900 N. Seward Street
Los Angeles, California 90038
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
I have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about August 4, 1995 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 400,000 shares of
your Class A Common Stock (the "Shares") reserved for issuance under the
1995 Stock Option Plan (the "Plan"). As your legal counsel, I have examined
the proceedings taken and are familiar with the proceedings proposed to be
taken by you in connection with the sale and issuance of the Shares under
the Plan.
It is my opinion that, when issued and sold in the manner referred to in the
Plan and pursuant to the respective agreements which accompany each grant
under the Plan, the Shares will be legally and validly issued, fully paid
and nonassessable.
I consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of my name wherever it appears in
the Registration Statement and any amendment thereto.
Very truly yours,
/s/ Dan Malstrom
Dan Malstrom
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated October 28, 1994, appearing in the annual report
on Form 10-K of The Todd-AO Corporation for the year ended August 31, 1994.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Los Angeles, California
July 17, 1995
