As filed with the Securities and Exchange Commission
on September 11, 1998. Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE KUSHNER-LOCKE COMPANY
(Exact name of issuer as specified in its charter)
<TABLE>
<S> <C>
California 95-4079057
(State of other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
11601 Wilshire Blvd., 21st Floor, Los Angeles, California 90025
(Address of principal executive offices) (Zip Code)
THE KUSHNER-LOCKE COMPANY 1988 STOCK INCENTIVE PLAN
(Full title of the plan)
DONALD KUSHNER
Co-Chairman, Co-Chief Executive Officer and Secretary
THE KUSHNER-LOCKE COMPANY
11601 Wilshire Blvd., 21st Floor
Los Angeles, California 90025
(310) 481-2000
(Name, address and telephone number of agent for service)
The Commission is requested to send copies of all orders, communications
and notices to:
BARRY L. DASTIN, ESQ.
KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP
1999 Avenue of the Stars, Suite 1600
Los Angeles, California 90067
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share (1) Price (1) Fee (1)
<S> <C> <C> <C> <C>
Common Stock,
No Par Value 500,000 shares (2) $3.00625 $1,503,125 $443.42
</TABLE>
(1) These amounts have been estimated in accordance with Rule 457(c)
solely for the purpose of calculating the Registration Fee, and is based on
the average of the high and low prices per share of Common Stock for the five
business days through September 10, 1998, as reported on NASDAQ.
(2) This Registration Statement also covers such undeterminable number of
additional shares of the Registrant's Common Stock as may become issuable in
the event certain anti-dilution provisions contained in the options granted
under the Company's 1988 Stock Incentive Plan, as amended, become operative.
No additional registration fee is included for these shares.
Exhibit Index begins on page II-6.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* The documents containing the information specified in this Part I have
been or will be sent or given to optionees as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the "Act"). Such
documents are not filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 promulgated under
the Act. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10
(a) of the Act. Copies of all documents incorporated by reference in Item 3
of Part II of this Form S-8 (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference herein), as well as
other documents required to be delivered to employees pursuant to Rule 428(b),
will be provided without charge to each person, including any beneficial
owner, on the written or oral request of such person made to The
Kushner-Locke Company, 11601 Wilshire Blvd., 21st Floor, Los Angeles,
California 90025, Attention: Robert Swan, Chief Financial Officer, Telephone:
(310) 481-2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents heretofore filed by The Kushner-Locke Company (the
"Company") with the Commission are hereby incorporated by reference in this
Registration Statement:
<TABLE>
<S> <C>
1. The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997.
2. Amendment to Annual Report of the Company on Form 10-K/A for the
fiscal year ended September 30,1997.
3. Quarterly Reports of the Company on Form 10-Q for the quarters ended
December 31, 1997, March 31, 1998 and June 30, 1998.
4. Amendment to Quarterly Report of the Company on Form 10-Q/A for the
quarter ended March 31, 1998.
5. Proxy Statement of the Company for the Annual Meeting of Shareholders
dated June 18, 1998, filed on May 18, 1998.
6. The description of the Common Stock contained in Item 1 of the
Company's Form 8-A for a Registration of Certain Classes of
Securities filed with the Commission pursuant to Section 12(g)
of the Exchange Act on November 14, 1988, as amended on November 18,
1988.
</TABLE>
All documents filed by the Company or the Plan with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended after the date of this Registration Statement and prior to the
filing of a post-effective amendment indicating that all securities offered
have been sold or which deregisters all
<PAGE>
securities then remaining unsold shall be deemed to be incorporated by
reference herein and shall be part hereof from the date of the filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall 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 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 superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
In accordance with Section 204.5 of the California General Corporation Law
("CGCL"), the Articles of Incorporation of the registrant, as amended,
include a provision which eliminates the personal liability of its directors
to the Company and its shareholders for monetary damage to the fullest extent
permissible under California law. This limitation has no effect on a
director's liability (i) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (ii) for acts or
omissions that a director 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 the director, (iii) for any transaction from which a director
derived an improper personal benefit, (iv) for acts or omissions that show a
reckless disregard for the director's duty to the Company or its shareholders
in circumstances in which the director was aware, or should have been aware,
in the ordinary course of performing his or her duties, of a risk of a
serious injury to the Company or its shareholders, (v) for acts or omissions
that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the Company or its shareholders, (vi)
under Section 310 of the CGCL (concerning contracts or transactions in which
a director has a material financial interest) or (vii) under Section 316 of
the CGCL (concerning directors' liability for improper dividends, loans and
guarantees). The provision does not eliminate or limit the liability of an
officer for any act or omission as an officer, notwithstanding that the
officer is also a director or that his actions, if negligent or improper,
have been ratified by the Board of Directors. Further, the provision has no
effect on claims arising under federal or state securities or blue sky laws
and does not affect the availability of injunctions and other equitable
remedies available to the Company's shareholders for any violation of a
director's fiduciary duty to the Company or its shareholders.
The Company's Articles of Incorporation also authorize the Company to
indemnify its agents (as defined in Section 317 of the CGCL) for breach of
duty to the corporation and its shareholders through bylaw provisions,
agreements or both, in excess of the indemnification otherwise permitted by
Section 317 of the CGCL subject to the limits on such excess indemnification
set forth in Section 204 of the CGCL. The general effect of Section 317 of
the CGCL and Article V of the Company's bylaws, as amended, is to provide for
indemnification of its agents to the fullest extent permissible under
California law.
The Company maintains insurance coverage for each director and officer of
the Company for claims against such directors and officers for any alleged
breach of duty, neglect, error, misstatement, misleading statement, omission
or act in their respective capacities as directors and officers of the
Company, or any matter claimed against them solely by reason of their status
as directors or officers of the Company, subject to certain exceptions.
<PAGE>
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
See Index to Exhibits on page II-6.
In lieu of an opinion of counsel concerning compliance with the
requirements of ERISA or an Internal Revenue Service ("IRS") determination
letter that the Plan is qualified under Section 401 of the Internal Revenue
Code, the Company hereby undertakes to submit or has submitted the Plan and
any amendments thereto to the IRS in a timely manner and has made or will
make all changes required by the IRS in order to qualify the Plan.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
<TABLE>
<S> <C>
(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 plan of distribution
not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
</TABLE>
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934, as amended) 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, 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 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 Act and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Los Angeles, State of California,
on this 11th day of September, 1998.
<TABLE>
<S> <C>
The Kushner-Locke Company
By: /S/ DONALD KUSHNER
Donald Kushner
Co-Chairman of the Board,
Co-Chief Executive Officer and
Secretary
</TABLE>
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Donald
Kushner, Peter Locke, and Robert Swan his or her true and lawful
attorney-in-fact and agent, with full power 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 or all amendments and post-effective amendments to
this Registration Statement, and to file the same, with all Exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorney-in-fact and 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 or she 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 hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Capacity Date
<S> <C> <C>
/S/ DONALD KUSHNER Co-Chairman of the Board and September 11, 1998
Donald Kushner Co-Chief Executive Officer
/S/ PETER LOCKE Co-Chairman of the Board and September 11, 1998
Peter Locke Co-Chief Executive Officer
/S/ ROBERT SWAN Senior Vice President and September 11, 1998
Robert Swan Chief Financial Officer
(Principal Financial Officer)
/S/ ADELINA VILLAFLOR Controller September 11, 1998
Adelina Villaflor (Principal Accounting Officer)
/S/ IRWIN FRIEDMAN Director September 11, 1998
Irwin Friedman
/S/ STUART HERSCH Director September 11, 1998
Stuart Hersch
/S/ JOHN LANNAN Director September 11, 1998
John Lannan
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit Reference
<S> <C> <C>
4.1 Registrant's 1988 Stock Incorporated by reference in
Incentive Plan Registrant's Registration Statement
on Form S-8, filed January 24,
1992 (Registration No. 33-45248)
4.2 Amendment to Registrant's Incorporated by reference from the
1988 Stock Incentive Plan Exhibits to Registrant's Report on
dated May 17, 1994 Form 10-Q for the fiscal quarter
ended December 31, 1995
4.3 Amendment to Registrant's Filed herewith
1988 Stock Incentive Plan
dated November 21, 1996
5 Opinion of Kaye, Scholer, Filed herewith
Fierman, Hays & Handler,
LLP
23.1 Consent of Kaye, Scholer, Incorporated by reference to
Fierman, Hays & Handler, Exhibit 5 filed herewith
LLP
23.2 Consent of KPMG Peat Filed herewith
Marwick LLP
</TABLE>
<PAGE>
Exhibit 4.3
SECOND AMENDMENT TO THE 1988 STOCK INCENTIVE PLAN
OF THE KUSHNER-LOCKE COMPANY
The following is the second amendment to the 1988 Stock Incentive Plan
(the "Plan") of The Kushner-Locke Company (the "Company"), dated as of
November 21, 1996.
WHEREAS, the following amendment to the Plan (the "Amendment") is deemed
to be in the best interest of the Company; and
WHEREAS, the Amendment has been duly approved by the Board of Directors
by unanimous written consent dated as of October 9, 1996 and by the
affirmative vote of the holders of the majority of the Company's stock
present or represented and entitled to vote at the Special Meeting of
Shareholders held on November 21, 1996; NOW, THEREFORE, in accordance with
Section 7.7 of the Plan, the Plan is hereby amended as follows, effective as
of November 1, 1996:
FIRST
All references in the Plan to Section 422A of the Internal Revenue Code
of 1986, as amended (the "Code"), are hereby amended to refer to Section 422
of the Code.
SECOND
The definition of 'Committee' in Section 1.1(i) of the Plan, as
originally numbered, is hereby amended in its entirety to read as follows:
"(i) 'Committee' shall mean either a committee appointed by the Board,
consisting of two or more members, each of whom is a Non-Employee Director,
or the entire Board."
THIRD
Section 1.1 of the Plan is hereby amended by deleting the definition of
"Disinterested" in Section 1.1(m), as originally numbered, in its entirety,
and the remaining subsections of Section 1.1 are hereby renumbered
accordingly, to the extent necessary.
<PAGE>
FOURTH
Section 1.1 of the Plan is hereby amended by adding the following
definition thereto as a new Section 1.1(r), and the remaining subsections are
hereby renumbered accordingly, to the extent necessary:
"(r) 'Non-Employee Director' shall mean a Non-Employee Director within the
meaning of the applicable regulatory requirements promulgated under Section
16 of the Exchange Act."
FIFTH
Section 1.1 of the Plan is hereby amended by deleting the definition of
"Stock Depreciation Right" in Section 1.1(dd), as originally numbered, in its
entirety, and the remaining subsections of Section 1.1 are hereby renumbered
accordingly, to the extent necessary.
SIXTH
The final sentence of Section 2.2(a) of the Plan is hereby amended to
add the following at the end of such sentence:
"(other than functions which are required to be performed by the
Committee pursuant to regulations promulgated under Section 16 of the
Exchange Act)."
SEVENTH
Section 2.3 of the Plan is hereby amended to delete the final sentence
thereof.
EIGHTH
The second sentence of Section 2.4 is hereby amended in its entirety to read
as follows: "The aggregate amount of Common Stock that may be issued or
transferred pursuant to Awards granted under this Plan shall not exceed
7,500,000 shares, subject to adjustment as set forth in Section 7.2."
NINTH
Section 2.5 of the Plan is hereby amended to delete Section 2.5(b), and the
former Section 2.5(a) shall hereafter be renumbered as Section 2.5.
<PAGE>
TENTH
Section 3.2(a) of the Plan is hereby amended to delete the provision at the
end of the second sentence.
ELEVENTH
Section 3.3 of the Plan is hereby amended in its entirety to read as follows:
"Each Option and all rights or obligations thereunder shall expire on such
date as shall be determined by the Committee, but not later than 10 years
after the Award Date of an Incentive Option or 10 years and one day after
the Award Date of a Nonqualified Stock Option and shall be subject to earlier
termination as hereinafter provided."
TWELFTH
The first sentence of Section 3.4 of the Plan is hereby amended in its
entirety to read as follows:
"Except as otherwise provided in Section 7.4, an Option may become
exercisable, in whole or in part, on the date or dates specified in the Award
Agreement, and thereafter shall remain exercisable until the expiration or
earlier termination of such Option."
THIRTEENTH
Section 3.5(a) of the Plan is hereby amended in its entirety to read as
follows:
"The aggregate Fair Market Value (determined as of the Award Date) of the
Common Stock for which Incentive Stock Options may first become exercisable
by any Participant during any calendar year under this Plan (other than as a
result of acceleration pursuant to Section 7.4 or 7.2), together with that of
Common Stock subject to incentive stock options first exercisable by such
Participant under any other plan of the Corporation or any subsidiary, shall
not exceed $100,000. To the extent such limitation is exceeded as a result
of acceleration (or any other reason), Options shall be treated as
Nonqualified Stock Options."
FOURTEENTH
Section 3.6 of the Plan is hereby amended in its entirety to read as follows:
"In its discretion, the Committee may, in the Award Agreement, provide for a
Tax-Offset Bonus to any Participant who elects to make a disqualifying
disposition (as defined in Section 422(a)(1) of the Code) of Common Stock
acquired pursuant to the exercise of an Incentive Stock Option. The Tax-
Offset Bonus shall be in the form of a cash payment equal to a percentage of
the difference between the exercise price and the lesser of (i) the Fair
Market Value on the date of exercise of the Common Stock with respect to
which the disqualifying disposition occurs or (ii) the amount realized from
such disqualifying disposition. Such percentage shall be set out in the
Award Agreement and shall be designed to offset the impact of additional
taxes which result from the disqualifying disposition. Notwithstanding the
preceding sentence,
<PAGE>
the Committee may reserve the right to from time to time change the
percentage applicable with respect to the Award Agreement."
All references in the Plan to Section 3.6(b) shall hereafter refer to
Section 3.6.
FIFTEENTH
Section 4.2(d) of the Plan is hereby amended in its entirety to read as
follows:
"(d) A Stock Appreciation Right granted independently of any Option
shall be exercisable pursuant to the terms of the Award Agreement."
SIXTEENTH
The second sentence of Section 5.1 of the Plan is hereby amended in its
entirety to read as follows:
"Each Restricted Stock Award Agreement shall specify the number of
shares of Common Stock to be issued to the Participant, the date of such
issuance, the price, if any, to be paid for such shares by the Participant and
the restrictions imposed on such shares."
SEVENTEENTH
The second sentence of Section 6.1 of the Plan is hereby amended in its
entirety to read as follows:
"A Performance Share Award Agreement shall specify the number of shares
of Common Stock subject to the Performance Share Award, the price, if any, to
be paid for such shares by the Participant and the conditions upon which
issuance to the Participant shall be based."
EIGHTEENTH
Section 7.3(b) of the Plan is hereby amended in its entirety to read as
follows:
"If the Participant's employment by the Company terminates as a result of
Retirement or Total Disability, the Participant or Participant's Personal
Representative, as the case may be, shall have, subject to earlier termination
pursuant to or as contemplated by Section 3.3, 12 months from the date of
termination of employment (or 3 months from the date of termination of
employment as a result of Retirement with respect to an Incentive Stock
Option) to exercise any Option to the extent it shall have become exercisable
by that date, and any Option not exercisable on that date shall terminate."
NINETEENTH
The first sentence of Section 7.4 of the Plan is hereby amended in its
entirety to read as follows:
<PAGE>
"Unless prior to an Event the Committee determines that, upon its
occurrence,there shall be no acceleration of Awards or determines those
Awards which shall be accelerated and the extent to which they shall be
accelerated upon the occurrence of an Event (i) each Option and each Stock
Appreciation Right shall become immediately exercisable to the full extent
theretofore not exercisable, (ii) Restricted Stock shall immediately vest
free of restrictions and (iii) the number of shares covered by each
Performance Share Award shall be issued to the Participant."
TWENTIETH
The first sentence of Section 7.7(a) of the Plan is hereby amended in
its entirety to read as follows:
"The Board shall have the authority at any time to terminate or, from
time to time, to amend or modify or suspend this Plan (or any part thereof)
without obtaining shareholder approval to the fullest extent permitted by
Rule 16b-3 or any successor thereto, except to the extent the Board
determines that such shareholder approval is required by any other applicable
law or regulation, in which case such amendment shall be effective once
approved by the Board and a majority of the shareholders."
TWENTY-FIRST
Section 7.7 of the Plan is hereby amended by deleting Section 7.7(b) in
its entirety, and the remaining subsection is renumbered accordingly.
Except as otherwise amended by this Amendment, the Plan is hereby
ratified and approved, and shall continue in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed on its behalf by its duly authorized officer as of the date first
set forth above.
<TABLE>
<S> <C>
THE KUSHNER-LOCKE COMPANY
By: ______________________________
Name: Peter Locke
Title: Co-Chief Executive Officer
Attest:
_____________________________
Name: Donald Kushner
Title: Secretary
</TABLE>
<PAGE>
Exhibit 5
KAYE, SCHOLER, FIERMAN, HAYES & HANDLER, LLP
A New York Limited Liability Partnership
1999 AVENUE OF THE STARS
LOS ANGELES, CALIFORNIA 90067-6048
September 10, 1998
Board of Directors
The Kushner-Locke Company
11601 Wilshire Blvd., 21st Floor
Los Angeles, California 90025
RE: Registration Statement on Form S-8
Gentlemen:
In connection with the Registration Statement on Form S-8 (the "Registration
Statement") filed by The Kushner-Locke Company, a California corporation
(the "Company"), with the Securities and Exchange Commission (the
"Commission") for the purpose of registering under the Securities Act of 1933,
as amended (the "Act"), the Company's common stock (the "Common Stock") to be
issued pursuant to the Company's 1988 Stock Incentive Plan, as amended (the
"1988 Plan"), we have examined such corporate records, certificates and other
documents, upon which we have relied, and reviewed such questions of law as we
have deemed necessary or appropriate for the purpose of this opinion.
On the basis of such examination and review, we advise you that the Common
Stock issuable under the 1988 Plan, subject to the issuance, delivery and
payment therefore in the manner contemplated by the Registration Statement and
the 1988 Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. In giving such opinion and consent,
we do not thereby admit that we come within the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations
of the Commission thereunder.
Very truly yours,
/S/ KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP
<PAGE>
Exhibit 23.2
The Board of Directors
The Kushner-Locke Company:
We consent to the use of our report incorporated herein by reference.
/S/ KPMG PEAT MARWICK LLP
Los Angeles, California
September 11, 1998
