AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 3 , 1997
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REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MOTO PHOTO, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 31-1080650
(State or jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
4444 LAKE CENTER DRIVE
DAYTON, OHIO 45426
(Address of Principal Executive Offices) (Zip Code)
MOTO PHOTO, INC. SALARY SAVINGS PLAN
(Full title of the plan)
DAVID A. MASON
4444 LAKE CENTER DRIVE
DAYTON, OHIO 45426
(Name and address of agent for service)
(937) 854-6686
(Telephone number, including area code, of agent for service)
Copy to:
J. Bradford Hammond
Crowe & Dunlevy, A Professional Corporation
321 South Boston, 5th Floor
Tulsa, Oklahoma 74103
(918) 592-9800
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
PROPOSED PROPOSED CALCULATION
AMOUNT TO MAXIMUM MAXIMUM OF
TITLE OF SECURITIES TO BE REGISTERED OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED PER SHARE (2) OFFERING FEE
PRICE(2)
<S> <C> <C> <C> <C>
VOTING COMMON STOCK, PAR 500,000 $2.4375 $1,218,750 $369.32
VALUE $.01 PER SHARE
</TABLE>
(1)In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2)Estimated in accordance with Rule 457(h) solely for purposes of calculating
the registration fee, based on the average of the high and low sales prices for
the Voting Common Stock as reported on the National Association of Securities
Dealers, Inc. Automated Quotation System for October 27, 1997.
PART I
INFORMATION REQUIRED IN THE 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 this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 (the "Securities Act")
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Registrant or the Moto Photo, Inc.
Salary Savings Plan (the "Plan") with the Securities and Exchange Commission are
incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997.
(4) The description of the Registrant's Voting Common Stock contained in
the Registrant's Current Report on Form 8-K dated September 9, 1992.
In addition, all documents subsequently filed by the Registrant and the
Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 (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 a part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
This Registration Statement covers Common Stock, par value $.01 per share,
of the Registrant, which is registered under Section 12(g) of the Exchange Act.
The description of the Common Stock contained in a registration statement under
the Exchange Act is incorporated herein by reference as described above. Plan
interests also being registered need not be described pursuant to this Item 4.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
There are no interests of any expert or counsel required to be disclosed
pursuant to Item 5.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or the Registrant's Board of Directors to grant, indemnification to
directors and officers of the Registrant in terms sufficiently broad to permit
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933.
Article Ninth of Registrant's Certificate of Incorporation, as amended, provides
that, to the fullest extent permitted by the Delaware General Corporation Law, a
director of Registrant shall not be liable to Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director. In addition,
Registrant has director and officer liability insurance which insures directors
and officers against loss in connection with actions taken or omitted to be
taken in their official capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
There are no restricted securities being offered or resold pursuant to this
Registration Statement.
ITEM 8. EXHIBITS
Number Description
5.1 Opinion of Crowe & Dunlevy, A Professional
Corporation, concerning legality of securities
being registered.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Crowe & Dunlevy (contained in Exhibit
5.1).
24.1 Powers of Attorney.
In lieu of the opinion of counsel or determination letter contemplated by
Item 601(b)(5)(ii) of Regulation S-K, the Registrant hereby confirms that it has
submitted the Plan and undertakes that it will submit all amendments to the Plan
to the Internal Revenue Service ("IRS") in a timely manner, and that it has made
or will make all changes required by the IRS in order to qualify the Plan under
Section 401 of the Internal Revenue Code.
ITEM 9. UNDERTAKINGS
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;
(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;
(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 the undertakings set forth in paragraphs (1)(i) and
(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Securities and Exchange Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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.
(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.
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 each filing of the Plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new Registration Statement
relating to the Securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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, 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 Dayton, State of Ohio, on November 3, 1997.
MOTO PHOTO, INC.
By: /s/ David A. Mason
David A. Mason
President and Treasurer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated:
Name Position Date
/s/Michael F. Adler* Chairman of the Board of Directors November 3, 1997
Miachel F. Adler and Chief Executive Officer
(Principal Executive Officer)
/s/David A. Mason Executive Vice President, Treasurer, November 3, 1997
David A. Mason and Director (Principal
Financial Officer)
Alfred E. Lefeld* Vice President and Controller November 3, 1997
Alfred E. Lefeld (Principal Accounting Officer)
Frank W. Benson* Director November 3, 1997
Frank W. Benson
Leslie Charm* Director November 3, 1997
Leslie Charm
Dexter B. Dawes* Director November 3, 1997
Dexter B. Dawes
Harry D. Loyle* Director November 3, 1997
Harrly D. Loyle
Douglas M. Thomsen* Director November 3, 1997
Douglas M. Thomsen
*By: /s/ David A. Mason
David A. Mason
Attorney-in-fact
Pursuant to the requirements of the Securities Act, Moto Photo, Inc.
(the administrator of the Plan) has duly caused this Registration Statement to
be signed on its behalf by the undersigned thereunto duly authorized, in the
City of Dayton, State of Ohio, on November 3, 1997.
MOTO PHOTO, INC.
(Administrator of the Plan)
By: /s/ David A. Mason
David A. Mason, Executive Vice President
and Treasurer
EXHIBIT INDEX
Number Description
5.1 Opinion of Crowe & Dunlevy, A Professional Corporation,
concerning legality of securities to be issued.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Crowe & Dunlevy (contained in Exhibit 5.1).
24.1 Powers of Attorney.
[Letterhead of Crowe & Dunlevy] Exhibit 5.1
October 31, 1997
Moto Photo, Inc.
4444 Lake Center Drive
Dayton, Ohio 45426
Re: Registration Statement on Form S-8 Relating to Moto Photo, Inc. Salary
Savings Plan
Ladies and Gentlemen:
Moto Photo, Inc. (the "Company") has requested our advice with respect to
certain matters in connection with the Moto Photo, Inc. Salary Savings Plan
(the "Plan"). We understand that a Registration Statement on Form S-8 relating
to the Plan (the "Registration Statement") will be filed with the Securities and
Exchange Commission.
We have examined and are familiar with the originals or copies, the
authenticity of which has been established to our satisfaction, of all documents
and other instruments we have deemed necessary to express the opinions
hereinafter set forth. We have assumed the accuracy and completeness of such
documents and instruments and of the information contained therein.
Based on the foregoing, and upon consideration of applicable law, it is our
opinion that:
1. The Plan has been duly authorized, adopted and executed and interests
in the Plan, when acquired by employees under the Plan, will be legally issued
interests in the Plan.
2. The shares of voting common stock, par value $0.01 per share ("Common
Stock"), of the Company that are covered by the Registration Statement and that
may be acquired by the Trust (as defined in the Plan) will, when acquired by the
Trust in accordance with the Plan, be legally issued, fully paid and
nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933 or the rules and regulations thereunder.
Respectfully submitted,
CROWE & DUNLEVY,
A PROFESSIONAL CORPORATION
By /s/ J. Bradford Hammond
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference of our firm under the caption "Experts" in the
Registration Statement on Form S-8, and related prospectus, pertaining to the
Salary Savings Plan of Moto Photo Inc. and to the incorporation by reference
therein of our report dated February 28, 1997, with respect to the consolidated
financial statements and schedule of Moto Photo, Inc. and subsidiaries
included in its Annual Report (Form 10-K) for the year ended December 31, 1996,
filed with Securities and Exchange Commission.
Ernst & Young LLP
Dayton, Ohio
October 28, 1997
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints Michael F. Adler, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign the Registration Statement on Form
S-8 relating to the offer and sale of shares of Voting Common Stock of the
Company in connection with the Moto Photo, Inc. Salary Savings Plan and any and
all amendments thereto (including post-effective amendments) and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Signature Title Date
/s/ David A. Mason Executive Vice, President, Treasurer November 3, 1997
David A. Mason and Director
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints David A. Mason, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign the Registration Statement on Form
S-8 relating to the offer and sale of shares of Voting Common Stock of the
Company in connection with the Moto Photo, Inc. Salary Savings Plan and any and
all amendments thereto (including post-effective amendments) and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Signature Title Date
/s/ Michael F. Adler Chairman of the Board of Directors November 3, 1997
Michael F. Adler and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitute and
appoint Michael F. Adler and David A. Mason, and each or any of them, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Registration Statement on Form S-8 relating to the offer
and sale of shares of Voting Common Stock of the Company in connection with the
Moto Photo, Inc. Salary Savings Plan and any and all amendments thereto
(including post-effective amendments) and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto each said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or any of them, or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue thereof.
Signature Title Date
/s/ Alfred E. Lefeld Vice President and Controller November 3, 1997
Alfred E. Lefeld
/s/ Frank W. Benson Director November 3, 1997
Frank W. Benson
/s/ Leslie Charm Director November 3, 1997
Leslie Charm
/s/ Dexter B. Dawes Director November 3, 1997
Dexter B. Dawes
/s/ Harry D. Loyle Director November 3, 1997
Harry D. Loyle
/s/ Douglas M. Thomsen Director November 3, 1997
Douglas M. Thomsen
