<PAGE>
As filed with the Securities and Exchange Commission on April 21, 2000
Registration No. 333-_____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRIMARK HOLDINGS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 95-4272695
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4553 Glencoe Avenue, Suite 200
Marina del Rey, California 90292
(Address of Principal Executive Offices, including Zip Code)
1999 STOCK OPTION PLAN OF TRIMARK HOLDINGS, INC.
and TRIMARK HOLDINGS, INC. 1999 DIRECTORS' OPTION PLAN
(Full Titles of the Plans)
JEFF GONZALEZ
CHIEF FINANCIAL OFFICER
TRIMARK HOLDINGS, INC.
4553 GLENCOE AVENUE, SUITE 200
MARINA DEL REY, CALIFORNIA 90292
(Name and Address of Agent For Service)
(310) 314-2000
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
WILLIAM M. ROSS, ESQ.
BRYAN CAVE LLP
120 BROADWAY, SUITE 300
SANTA MONICA, CA 90401-2305
(310) 576-2102
===============================================================================
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING PRICE REGISTRATION FEE
SHARE (2) (2)
<S> <C> <C> <C> <C>
common stock, par value 250,000 N/A $1,218,750 $322
$.001 per share ("Common
Stock") (3)
Common Stock (4) 106,000 N/A $442,620 $117
Total 356,000 N/A $1,661,370 $439
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement shall also cover a
presently indeterminate number of additional shares of the Registrant's
Common Stock that may become issuable as a result of anti-dilution
adjustments deemed necessary or equitable by the Board of Directors of the
Registrant upon stock splits, stock dividends or other similar changes in
capitalization.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) These shares are offered under the Registrant's 1999 Stock Option Plan. As
none of the options have yet been granted, pursuant to Rule 457(h)(1) the
filing fee is calculated based upon the average of the high and low selling
prices per share of the Common Stock on April 14, 2000, as reported on the
Nasdaq SmallCap Market, which was $4.875 per share.
(4) These shares are offered under the Registrant's 1999 Directors' Option
Plan. Pursuant to Rule 457(h)(1), the filing fee for the 42,000 shares
subject to options that have been granted is calculated based upon the
weighted average of the various strike prices of such shares, which is
$3.11. Pursuant to Rule 457(h)(1), the filing fee for the 64,000 shares
subject to options that have not yet been granted is calculated based upon
the average of the high and low selling prices per share of the Common
Stock on April 14, 2000, as reported on the Nasdaq SmallCap Market, which
was $4.875 per share.
===============================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
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, as amended (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 DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated in
this Registration Statement by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended June
30, 1999;
(2) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters
ended September 30, 1999 and December 31, 1999;
(3) The Registrant's definitive Proxy Statement dated October 15, 1999 in
connection with its Annual Meeting of Stockholders held on November 17,
1999; and
(4) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A dated May 23, 1990.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereunder have been sold or which deregisters all such shares 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 reports or
documents. Any statement contained herein or in a document 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 earlier statement. Any 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.
Section 145(a) of the Delaware General Corporation Law ("DGCL") provides
that a
2
<PAGE>
Delaware corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no cause to believe his
or her conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of the DGCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsection (a) and (b) or in the defense of any
claim, issue or matter therein, such officer or director shall be indemnified
against expenses actually and reasonably incurred by him or her in connection
therewith; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation may purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
such officer or director and incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liabilities under Section
145.
As permitted by Section 102(b)(7) of the DGCL, the Registrant's Certificate
of Incorporation, as amended, provides that a director shall not be liable to
the Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director. However, such provision does not eliminate or limit the
liability of a director for acts or omissions not in good faith or for breaching
his or her duty of loyalty, engaging in intentional misconduct or knowingly
violating a law, paying a dividend or approving a stock repurchase which was
illegal, or obtaining an improper personal benefit. A provision of this type has
no effect on the availability of equitable remedies, such as injunction or
rescission, for breach of fiduciary duty.
The Registrant's Certificate of Incorporation, as amended, and its Bylaws
provide for indemnification of its directors, officers, agents and employees to
the fullest extent permissible under applicable law.
The Registrant maintains policies of directors' and officers' liability
insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
3
<PAGE>
ITEM 8. EXHIBITS.
See Index to Exhibits.
ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) 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 this 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 this Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement; provided, however, that paragraphs
(1)(a)(i) and (1)(a)(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 with or furnished to the
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.
(b) 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.
(c) 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.
(2) 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 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.
(3) 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 foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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
4
<PAGE>
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.
5
<PAGE>
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 Los Angeles, State of California, on this 21st day of
April, 2000.
TRIMARK HOLDINGS, INC.
By: /s/ Mark Amin
-----------------------
Mark Amin
Chairman of the Board and
Chief Executive Officer
6
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Mark Amin and Jeff Gonzalez, or each one of them acting
alone, 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 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 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 in and about the premises, 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 hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on this 21st day of April, 2000, by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Mark Amin Chairman of the Board and Chief Executive Officer
- ----------------------------- (Principal Executive Officer)
Mark Amin
/s/ Jeff Gonzalez Chief Financial Officer and Secretary (Principal
- ----------------------------- Financial and Accounting Officer)
Jeff Gonzalez
/s/ Peter J. Dekom Director
- -----------------------------
Peter J. Dekom
/s/ Matthew H. Saver Director
- -----------------------------
Matthew H. Saver
/s/ Tofigh Shirazi Director
- -----------------------------
Tofigh Shirazi
/s/ Gordon Stulberg Director
- -----------------------------
Gordon Stulberg
</TABLE>
7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Method of Filing
- ------- ----------- ----------------
<S> <C> <C>
4.1 The Registrant's Certificate of Incorporation, incorporated herein by
reference to Exhibit 3.1 of the Registrant's Annual Report on Form 10-K
for the fiscal year ended June 30, 1992.
4.2 The Registrant's Bylaws, as amended, incorporated herein by
reference to Exhibit 3.2 of the Registrant's Annual Report on
Form 10-K for the fiscal year ended June 30, 1991.
4.3 The Registrant's 1999 Stock Option Plan, incorporated by
reference to Annex A to the Registrant's proxy statement dated
October 15, 1999 and filed with the Commission on October 21,
1999.
4.4 The Registrant's 1999 Directors' Option Plan, incorporated
herein by reference to Exhibit 10.100 of the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March 31,
1999.
5.1 Opinion of Bryan Cave LLP Filed herewith
electronically
23.1 Consent of PricewaterhouseCoopers LLP Filed herewith
electronically
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page of this Registration
Statement).
</TABLE>
<PAGE>
EXHIBIT 5.1
April 21, 2000
Trimark Holdings, Inc.
4553 Glencoe Ave., Suite 200
Marina del Rey, CA 90292
Re: Trimark Holdings, Inc. Registration Statement on Form S-8 for 356,000
shares of Common Stock
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
Statement"), of Trimark Holdings, Inc., a Delaware corporation (the
"Registrant"), to be filed with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), in connection with the registration by the Registrant of up
to 356,000 shares (the "Shares") of the common stock, par value $.001 per share
("Common Stock"), of the Registrant, issuable pursuant to the terms of the
Registrant's 1999 Stock Option Plan ("Stock Option Plan") and 1999 Directors'
Option Plan ("Directors' Plan").
For purposes of rendering this opinion, we have made such legal and factual
examinations as we have deemed necessary under the circumstances and, as part of
such examination, we have examined, among other things, originals and copies,
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate. For the purposes of such examination, we have assumed the
genuineness of all signatures on original documents and the conformity to
original documents of all copies submitted to us.
On the basis of and in reliance upon the foregoing examination and
assumptions, we are of the opinion that, assuming the Registration Statement
shall have become effective pursuant to the provisions of the Securities Act,
the Shares being offered under the Stock Option Plan and the Directors' Plan
(each, a "Plan"), when issued in accordance with the Registration Statement and
the provisions of the applicable Plan, and upon receipt by the Registrant of the
consideration as contemplated by such Plan, will be validly issued, fully paid
and nonassessable.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act or the General Rules and Regulations of the Commission.
Very truly yours,
/s/ BRYAN CAVE LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Trimark Holdings, Inc.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 27, 1999 relating to the
financial statements and financial statement schedules of Trimark Holdings, Inc.
which appears in Trimark Holdings, Inc.'s Annual Report on Form 10-K for the
year ended June 30, 1999.
/s/ PricewaterhouseCoopers LLP
Century City, California
April 21, 2000
