<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION REGISTRATION
WASHINGTON, D.C. 20549
FORM S-8 NO. ________
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________________________
EARL SCHEIB, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 95-1759002
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
8737 WILSHIRE BOULEVARD, BEVERLY HILLS, CALIFORNIA 90211
(ADDRESS OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
__________________________________________
EARL SCHEIB, INC.
1994 PERFORMANCE EMPLOYEE STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
DAVID I. SUNKIN
VICE PRESIDENT AND GENERAL COUNSEL
8737 WILSHIRE BOULEVARD, BEVERLY HILLS, CALIFORNIA 90211
310-652-4880
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
__________________________________________
COPY TO:
MARK A. BONENFANT
BUCHALTER, NEMER, FIELDS & YOUNGER,
A PROFESSIONAL CORPORATION
601 SOUTH FIGUEROA STREET, SUITE 2400
LOS ANGELES, CALIFORNIA 90017
(213) 891-0700
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities Amount Offering Aggregate Amount of
to be Registered to be Price Offering Registration
Registered Per Unit (1) Price Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par value 200,000 shares(2) $8.3125 $1,662,500 $574
=============================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) based upon the average of the high and low prices reported
in the Consolidated Reporting System on September 19, 1996.
(2) These shares are registered in addition to the 300,000 shares registered
pursuant to the Registration Statement on Form S-8 (No. 87- 87128).
<PAGE> 2
PART I--INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The Board of Directors (the "Board") and Shareholders of Earl Scheib,
Inc., (the "Company") have adopted the Earl Scheib, Inc. 1994 Performance
Employee Stock Option Plan (the "1994 Option Plan") which provides for the
continuous participation of key employees of the Company. The Company
previously filed a Registration Statement on Form S-8 (No. 33-87128) which was
declared effective on December 9, 1994 by the Securities and Exchange
Commission (the "Exchange") registering the original shares under the 1994
Option Plan. In June 1996, the Board of Directors adopted and in August, 1996,
the stockholders approved Amendment No. 1 (the "Amendment No. 1") to the 1994
Option Plan to (i) increase the number of shares reserved for issuance from
300,000 to 500,000 shares; and (ii) amend Section 8.3 of the Option Plan,
entitled "Mergers and Consolidations," to reduce the percentage of the
Company's outstanding shares necessary to be sold or exchanged before
outstanding options "accelerate" and become immediately exercisable, from 80%
to 50% of outstanding shares. Under the amendment, if 50% or more of the
outstanding shares are sold to or acquired by another corporation or person or
persons, including a group, then the exercise of all outstanding options
accelerates and they become fully exercisable concurrent with the closing of
the triggering sale or exchange. By lowering the triggering event from a sale
or exchange of 80% to a sale or exchange of 50% of outstanding shares, the
1994 Option Plan provisions will more closely parallel "change-of- control"
clauses in other companies' incentive plans and, the Company believes and
recognizes that a 50% or greater sale of the Company's shares represents a
change of control that should appropriately accelerate vesting.
This Registration Statement relates to the additional shares to be
issued pursuant to Amendment No. 1 to the 1994 Option Plan. The following
discussion summarizes the principal features of the 1994 Option Plan. This
description of the 1994 Option Plan is qualified in its entirety by reference
to the full text of the 1994 Option Plan, a copy of which may be requested from
the Company.
The Company's principal executive offices are located at 8737 Wilshire
Boulevard, Beverly Hills, California 90211, (310) 652-4880.
PURPOSE
The purpose of the 1994 Option Plan is to strengthen the Company by
providing to participating employees added incentives for high levels of
performance and to encourage stock ownership in the Company. The 1994 Option
Plan seeks to accomplish these goals by providing a means whereby such
employees of the Company and its subsidiaries may be given an opportunity to
purchase, by way of option, Common Stock of the Company. The 1994 Option Plan
is also intended to enable the Company and its subsidiaries to compete
effectively for and retain the services of such persons and to provide
incentives for such persons to exert maximum efforts for the success of the
Company and its subsidiaries.
The Company intends that the options issued under the 1994 Option Plan
shall, in the discretion of the Board, or any committee to which responsibility
for administration of all or any part of the 1994 Option Plan has been
delegated, be either incentive stock options ("Incentive Stock Options") as
that term is used in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any successor thereto, or options which do not qualify
as incentive stock options ("Non-Qualified Stock Options"). The 1994 Option
Plan is not subject to any provisions of the Employee Retirement Income
Security Act of 1974 ("ERISA").
ADMINISTRATION
The Board has delegated administration of the 1994 Option Plan to its
Compensation Committee ("Committee"). The Committee shall have full power and
authority in its discretion to take any and all action required or permitted to
be taken under the 1994 Option Plan, including the selection of participants to
whom stock options may be granted, the determination of the number of shares
which may be covered by stock options, the purchase price, and other terms and
conditions thereof. Further information may be obtained from David I. Sunkin
at 8737 Wilshire Boulevard, Beverly Hills, California 90211 or by calling (310)
652-4880.
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SHARES RESERVED
There are 500,000 shares of Common Stock, par value $1.00, reserved
for issuance upon exercise of options granted under the 1994 Option Plan, as
amended. Shares of Common Stock will be made available from the authorized but
unissued shares of the Company or from shares reacquired by the Company,
including shares purchased in the open market. If any option granted under the
1994 Option Plan shall for any reason expire, terminate, be canceled or
otherwise be annulled without having been exercised in full, the shares not
purchased under such option shall again become available for the 1994 Option
Plan.
ELIGIBILITY
Key employees, as determined by the Committee, including executive
officers, are eligible to participate in the 1994 Option Plan. As of the date
hereof, the Company estimates that approximately 80 to 100 employees are
eligible to participate. The Company may issue Incentive Stock Options
provided that the aggregate fair market value (determined at the time the
Incentive Stock Option is granted) of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by the optionee
during any calendar year (under all Incentive Stock Option plans of the
Company) shall not exceed $100,000. Should it be determined that any Incentive
Stock Option granted pursuant to the 1994 Option Plan exceeds such maximum,
such Incentive Stock Option shall be considered to be a Non-Qualified Stock
Option and not to qualify for treatment as an Incentive Stock Option under
Section 422 of the Code to the extent, but only to the extent, of such excess.
To date, the Committee has authorized the issuance of an aggregate of
Non-Qualified Stock Options to purchase approximately 390,000 shares of the
Company's Common Stock, approximately 100,000 of which were subject to
shareholder approval of the Amendment No. 1, which was received on August 23,
1996.
OPTION PRICE
The exercise price of each Non-Qualified Stock Option shall be
determined by the Committee and shall not be less than 100% of the fair market
value of the Common Stock subject to the option on the date the option is
granted. The exercise price of Incentive Stock Options may not be less than
100%; provided, however, that the purchase price of the Common Stock subject to
the Incentive Stock Option may not be less than 110% of such fair market value
(without regard to any restriction other than a restriction which, by its
terms, will never lapse) where the optionee owns (or is deemed to own pursuant
to Section 424(d) of the Code) Common Stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company or any of
its subsidiaries. An option shall be exercised by written notice to the
Company upon terms and conditions as the optionee's stock option agreement
provides and in accordance with such other procedures for the exercise of
options as the Board of Directors or Committee may establish from time to time.
The purchase price of Common Stock acquired pursuant to an option shall be paid
by such method as or methods as the Committee may determine and may consist of
cash or check payable to the order of the Company, in whole shares of Common
Stock of the Company owned by the optionee having a fair market value on the
exercise date (determined by the Committee in accordance with any reasonable
valuation method) equal to the option price for the shares being purchased.
Payments of Common Stock shall be made by delivery of Common Stock certificates
properly endorsed for transfer in negotiable form. If other than the optionee,
the person or persons exercising the option shall be required to furnish the
Company appropriate documentation that such person or persons have the full
legal right and power to exercise the option on behalf of and for the optionee.
ADJUSTMENTS UPON CHANGES IN COMMON STOCK; REORGANIZATION, MERGER, CONSOLIDATION
If the outstanding shares of the Common Stock of the Company are
increased, decreased, or changed into, or exchanged for a different number or
kind of shares or securities of the Company, without receipt of consideration
by the Company, through reorganization, merger, recapitalization,
reclassification, stock split, stock dividend, stock consolidation, or
otherwise, an appropriate and proportionate adjustment shall be made in the
number and kind of shares as to which options may be granted. A corresponding
adjustment changing the number or kind of shares and the exercise price per
share allocated to unexercised options, or portions thereof, which shall have
been granted prior to any such change shall likewise be made. Adjustments
shall be made by the Committee whose determination as to what adjustments shall
be made, and the extent thereof, shall be final and conclusive. No fractional
shares of stock shall be issued under the 1994 Option Plan on account of any
such adjustment. Upon the dissolution or liquidation of the Company, or upon
any reorganization, merger
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<PAGE> 4
or consolidation of the Company where the Company is the surviving corporation
and the stockholders immediately prior to such transaction do not own at least
50% of the Company's Common Stock immediately after such transaction, or upon
any reorganization, merger or consolidation of the Company where the Company is
not the surviving corporation, or upon a sale of substantially all of the
assets or 50% of the outstanding Common Stock, the 1994 Option Plan will
terminate and any options granted prior thereto shall become immediately
exercisable in full and shall remain exercisable until the effective date of
such transaction.
VESTING
The Committee shall determine vesting periods, if any, for options
granted under the 1994 Option Plan.
EXPIRATION, TERMINATION AND TRANSFER OF OPTIONS
Subject to earlier termination as provided in the 1994 Option Plan,
each Incentive Stock Option granted and all rights or obligations thereunder by
its terms shall expire on such date as the Committee may determine as set forth
in such stock option agreement, but not later than (i) 5 years from the date of
grant in the case of any Incentive Stock Option granted to an optionee who owns
(or is deemed to own pursuant to Section 424(d) of the Code) Common Stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or any of its subsidiaries, and (ii) 10 years from the
date of grant in the case of all other Incentive Stock Options. In the case of
Non-Qualified Stock Options, the term may not exceed 10 years. For purposes of
the 1994 Option Plan, the date of grant of an option shall be the date on which
the Committee takes final action approving the award of the option,
notwithstanding the date the optionee accepts the option, the date of execution
of the option agreement, or any other date with respect to such option.
Except in the event of termination of employment due to death, disability or
termination for "substantial cause" (as defined below), options will terminate
three months after an optionee ceases to be employed by the Company or its
subsidiaries unless the options by their terms were scheduled to terminate
earlier but only as to such number of shares as to which the option was
exercisable on the date of termination. If termination occurs by reason of
disability (as defined in the 1994 Option Plan) such three month period shall
be extended to one year. If employment is terminated for "substantial cause,"
the optionee's right to exercise will terminate at the time notice of
termination is given. Termination for "substantial cause" shall include (i)
the commission of a criminal act against, or in derogation of the interests of
the Company or any of its subsidiaries, (ii) knowingly divulging confidential
information, (iii) interference with any major customer, or (iv) any similar
action that the Committee may deem sufficiently injurious to the interests of
the Company. If an employee dies while in the employ of the Corporation or
within three months after cessation of such employment (except for "substantial
cause"), his or her estate or personal representation shall have the right to
exercise such option before the date such option would otherwise terminate, but
only as to the number of shares as to which such option was exercisable on the
date of death. An option by its terms may only be transferred by will or by
laws of descent or pursuant to a qualified domestic relations order, and,
except as otherwise required pursuant to a qualified domestic relations order,
options shall be exercisable during the lifetime of the person to whom the
option is granted only by such person (or in the case of disability by his or
her court appointed legal representative).
In addition, subsequent to the grant of any option, the Committee, at
any time before complete termination of such option, may accelerate the time or
times at which such option may be exercised in whole or in part (without
reducing the term of such option), notwithstanding the provision in the option
stating the time during which the option may be exercised.
TERMINATION AND AMENDMENT OF THE 1994 OPTION PLAN
The 1994 Option Plan will terminate 10 years from the date it is
approved by the shareholders of the Company, or upon such earlier date
determined by the Board of Directors. The 1994 Option Plan will also terminate
upon liquidation, reorganization, merger or consolidation of the Company as
discussed above. No options may be granted under the 1994 Option Plan after it
is terminated. No termination, suspension, modification or amendment of the
1994 Option Plan may, without the consent of the person to whom an option shall
theretofore have been granted, adversely affect the rights of such person with
respect to such option. No modification, extension, renewal or other change in
any option granted under the 1994 Option Plan shall be made after the grant of
such option, unless the same is consistent with the provisions of the 1994
Option Plan. With the consent of the holder of an option and subject to the
terms and conditions of the 1994 Option Plan, the Committee may amend
outstanding stock option agreements with any optionee, including, without
limitation, any
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amendment which would (i) accelerate the time or times at which the option may
be exercised and/or (ii) extend the scheduled expiration date of the option.
The 1994 Option Plan may be amended by the Board of Directors at any
time, and from time to time. However, except as otherwise provided in the 1994
Option Plan, no amendment shall be effective unless approved by a vote of the
majority of the outstanding shares of the common stock of the Company,
represented in person or by proxy and entitled to vote, at a meeting of the
shareholders of the Company and any adjournment or postponement thereof if the
amendment will: (a) materially increase the number of shares reserved for
options under the 1994 Option Plan; (b) materially modify the requirements as
to eligibility for participation in the 1994 Option Plan; or (c) materially
increase the benefits accruing to participants under the 1994 Option Plan.
FEDERAL INCOME TAX CONSEQUENCES
The following discussion is only a summary of the principal federal
income tax consequences of the options and rights to be granted under the 1994
Option Plan, and is based on existing federal law (including administration,
regulations and rulings) which is subject to change, in some cases
retroactively. This discussion is also qualified by the particular
circumstances of individual optionees, which may substantially alter or modify
the federal income tax consequences herein discussed. Each employee should
consult his or her tax advisor with respect to the specific tax consequences of
his or her participation in the 1994 Option Plan.
Generally, under present law, when an option qualifies as an Incentive
Stock Option under Section 422 of the Code: (i) an optionee will not realize
taxable income either upon the grant or by the exercise of the option, (ii) any
gain or loss upon a qualifying disposition of the shares acquired by the
exercise of the option will be treated as capital gain or loss, and (iii) no
deduction will be allowed to the Company for federal income tax purposes in
connection with the grant or exercise of an Incentive Stock Option or a
qualifying disposition of the shares. A disposition by an optionee of Common
Stock acquired upon exercise of an Incentive Stock Option will constitute a
qualifying disposition if it occurs more than two years after the grant of the
option, and one year after the transfer of the shares of the optionee. If such
Common Stock is disposed of by the optionee before the expiration of those time
limits, the transfer would be a "disqualifying disposition" and the optionee,
in general, will recognize ordinary income equal to the lesser of (i) the
aggregate fair market value of the share, as of the date of exercise less the
option price, or (ii) the amount realized on the disqualifying disposition less
the option price. Ordinary income from a disqualifying disposition will
constitute ordinary compensation income. Any gain in addition to the amount
reportable as ordinary income on a "disqualifying disposition" generally will
be a capital gain.
Upon the exercise of an Incentive Stock Option, the difference between
the fair market value of Common Stock on the date of exercise and the option
price generally is treated as an adjustment to taxable income in that taxable
year for alternative minimum tax purposes, as are a number of other items
specified by the Code. Such adjustments (along with tax preference items) form
the basis for the alternative minimum tax (presently at the rate of 26% on the
first $175,000 of alternative minimum taxable income and 28% on amounts in
excess of $175,000 for individuals), which may apply depending on the amount of
the computed "regular tax" of the employee for that year. Under certain
circumstances the amount of alternative minimum tax is allowed as a carry
forward credit against regular tax liability in subsequent years.
In the case of stock options which do not qualify as an Incentive
Stock Option (Non-Qualified Stock Options), no income generally is recognized
by the optionee at the time of the grant of the option. Under present law the
optionee generally will recognize ordinary income at the time the Non-Qualified
Stock Option is exercised equal to the aggregate fair market value of the
shares acquired less the option price. Ordinary income from a Non-Qualified
Stock Option will constitute compensation for which withholding may be required
under federal and state law.
Subject to special rules applicable when an optionee uses Common Stock
of the Company to exercise an option, shares acquired upon exercise of a
Non-Qualified Stock Option will have a tax basis equal to their fair market
value on the exercise date or other relevant date on which ordinary income is
recognized and the holding period for the shares generally will begin on the
date of exercise or such other relevant date. Upon subsequent disposition of
the shares, the optionee generally will recognize a capital gain or loss.
Provided the shares are held by the optionee for more than one year prior to
disposition, such gain or loss will be treated as long-term capital gain or
loss.
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The Company will generally be entitled to a deduction equal to the
ordinary income (i.e., compensation) portion of the gain recognized by the
optionee in the case of a "disqualifying disposition" of an Incentive Stock
Option or in connection with the exercise of a Non-Qualified Stock Option
provided the Corporation complies with any withholding requirements of federal
and state law.
RESTRICTION ON RESALE
Certain directors and officers of the Company may be deemed to be
"affiliates" as that term is defined under the Securities Act of 1933, as
amended (the "Securities Act of 1933"). Common Stock acquired under the 1994
Option Plan by an affiliate may only be reoffered or resold under an effective
registration statement, under Rule 144 or other exemption from the registration
requirements of the Securities Act of 1933.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Company will make available to all eligible employees and
directors (the "Participants"), without charge, upon written or oral request,
the documents incorporated by reference in Item 3 of Part II of the
registration statement, and such documents are hereby incorporated by reference
into this Section 10(a) prospectus. All Participants may, upon oral or written
request and without charge, receive all other documents required to be
delivered to Participants pursuant to Rule 428(b) of the Securities Act of
1933, as amended. Such requests are to be directed to David I. Sunkin, Vice
President and General Counsel of the Company at 8737 Wilshire Boulevard,
Beverly Hills, California 90211, (310) 652-4880.
PART II--INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in the
registration statement and are deemed to be a part thereof from the date of
filing such document:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended April 30, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the period
ended July 31, 1996; and
(c) The Company's Current Report on Form 8-K as filed with the
Exchange on September 12, 1996.
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, 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. Any statement contained herein or in a document, all or a portion
of which is 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 in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or 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.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides, in
summary, that the directors and officers of the Corporation may, under certain
circumstances, be indemnified by the Corporation against all expenses incurred
by or imposed upon them as a result of actions, suits or proceedings brought
against them as such directors and officers, or as directors or officers of any
other organization at the request of the Corporation, if they act in good faith
and in a manner they reasonably believe to be in or not opposed to the best
interests of the Corporation, and with respect to any criminal action or
proceeding, have no reasonable cause to believe their conduct was unlawful,
except that no indemnification shall be made against expenses in respect to any
claim, issue or matter as to which they shall have been adjudged to be liable
to the Corporation unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
they are fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper. Section 145 of the Delaware General Corporation
Law also provides that directors and officers of the Corporation are entitled
to such indemnification by the Corporation to the extent that such persons are
successful on the merits or otherwise in defending any such action, suit or
proceeding. The Corporation's Bylaws provide for the indemnification by the
Corporation of officers and directors to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law.
Section 102 of the Delaware General Corporation Law provides that a
corporation, in its Certificate of Incorporation, may eliminate the personal
liability of its directors to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, other than liability for
(1) any breach of the director's duty of loyalty to the corporation of its
stockholders, (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) any transaction from
which the director derived an improper personal benefit and (4) unlawful
payment of dividends or unlawful stock purchases or redemptions. The
Corporation's Certificate of Incorporation provides for the elimination of
personal liability of its directors as permitted by Section 102 of the Delaware
General Corporation Law.
The Corporation maintains a Directors and Officer's Insurance Policy
for the benefit of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The Exhibits filed herewith are listed on the Exhibit Index on
page 10.
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 of 1933;
(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.
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(b) That, for the purpose of determining any liability
under the Securities Act of 1933, 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 of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (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) 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 expense 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 of
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.
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 Beverly Hills, State of California, on
September 20, 1996.
EARL SCHEIB, INC.,
a Delaware Corporation
By /s/ DANIEL A. SEIGEL
----------------------------------
Daniel A. Seigel
President and Chief
Executive Officer
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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 Title Date
---- ----- ----
<S> <C> <C>
/s/ DANIEL A. SEIGEL Chief Executive Officer September 20, 1996
- ------------------------------------ (Principal Executive
Daniel A. Seigel Officer)
/s/ JOHN BRANCH Senior Vice President September 20, 1996
- ------------------------------------ and Chief Financial
John Branch Officer (Principal
Financial Officer)
/s/ PHILIP WM. COLBURN Director September 20, 1996
- ------------------------------------
Philip Wm. Colburn
/s/ ALEXANDER L. KYMAN Director September 20, 1996
- ------------------------------------
Alexander L. Kyman
/s/ DONALD R. SCHEIB Director September 20, 1996
- ------------------------------------
Donald R. Scheib
/s/ ROBERT L. SPENCER Director September 20, 1996
- ------------------------------------
Robert L. Spencer
/s/ ROBERT WILKINSON Director September 20, 1996
- ------------------------------------
Robert Wilkinson
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Exhibit Number
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
4.1* Earl Scheib, Inc. 1994 Performance Employee Stock Option Plan
4.2 Amendment No. 1 to Earl Scheib, Inc. 1994 Performance Employee Stock Option Plan
5.1 Opinion of Buchalter, Nemer, Fields & Younger, a Professional corporation
23.1 Prior Independent Auditor's Consent
23.2 Current Independent Auditor's Consent
23.3 Legal Counsel Consent is contained in Exhibit 5
</TABLE>
_______________
* Incorporated by reference to Registration Statement on Form S-8 (No.
33-87128).
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EXHIBIT 4.2
AMENDMENT NO. 1
TO
THE EARL SCHEIB, INC.
1994 PERFORMANCE EMPLOYEE STOCK OPTION PLAN
The Plan is hereby amended as follows:
(a) Section 3.1 (Number of Shares Available) is amended to read as follows:
"Section 3.1 Number of Shares Available. The total number of shares of
Common Stock which are available for granting Options hereunder shall be
five hundred thousand (500,000) (subject to adjustment as provided below in
Section 3.3 and in Article VIII hereof)."
(b) Section 8.3 (Mergers and Consolidations), the first paragraph of such
Section 8.3, is amended to read as follows:
"Section 8.3 Mergers and Consolidations. Notwithstanding the other Sections
of this Article VIII, upon the dissolution or liquidation of the Company,
or upon any reorganization, merger or consolidation of the Company with one
or more corporations where the Company is the surviving corporation and the
stockholders of the Company immediately prior to such transaction do not
own at least eighty percent (80%) or more of the Company's Common Stock
immediately after such transaction, or upon any reorganization, merger or
consolidation of the Company with one or more corporations where the
Company is not the surviving corporation, or upon a sale of substantially
all of the assets or the sale or exchange of fifty percent (50%) or more of
the then outstanding shares of Common Stock of the Company to another
person, corporation or entity, including any group within the meaning of
Regulation 13D promulgated under Section 13(d) of the Securities Exchange
Act of 1934 (any such reorganization, merger, consolidation, sale of
assets, or sale of shares of Common Stock being hereinafter referred to as
the "Transaction"), the Plan shall terminate; provided however, that
(i) any Option theretofore granted and outstanding under the Plan shall
become immediately exercisable in full;
(ii) the termination of the Plan, and any exercise of any Option (to the
extent that the holder's right to exercise such Option has been
accelerated by the operation of Section 8.3(i)), shall be
concurrent with, subject to and conditioned upon the consummation
of the Transaction to which such termination and acceleration
relates, and if, for any reason, such Transaction is abandoned,
exercise of the Option shall be void and such Option shall
thereafter be exercisable only as permitted by the Plan and the
Option Agreement, which shall remain in full force and effect."
Except as amended hereby, the Plan and each provision thereof remains in full
force and effect. Capitalized terms used herein shall have the same meaning as
defined in the Plan.
* * * *
<PAGE> 1
EXHIBIT 5.1
September 18, 1996
Securities and Exchange Commission
Division of Corporate Finance
450 Fifth Street, N.W.
Washington, D.C. 20549
Attn: Office of Applications and Reports Services
Re: Earl Scheib, Inc.
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Earl Scheib, Inc., a Delaware
corporation (the "Company"), in connection with the registration of 200,000
shares of common stock, $1.00 par value (the "Shares") with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "1933 Act"), pursuant to a registration statement on Form S-8 (the
"Registration Statement"). The Shares are being registered on behalf of the
Company and will be issued pursuant to the Company's 1994 Performance Employee
Stock Option Plan (the "Plan").
This opinion is being delivered in accordance with the
requirements of Item 601(b)(5)(i) of Regulation S-K under the 1933 Act.
In our capacity as counsel to the Company, we have reviewed
such documents and made such inquiries as we have reasonably deemed necessary
to enable us to render the opinion expressed below. In all such review, we
have made certain customary assumptions such as the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
lack of any undisclosed modifications, waivers, or amendments to any documents
reviewed by us and the conformity to authentic original documents of all
documents submitted to us as conformed or photostatic copies. For purposes of
rendering this opinion, we have investigated such questions of law as we have
deemed necessary.
On the basis of the foregoing, and in reliance thereon and
subject to the assumptions, qualifications, exceptions and
<PAGE> 2
Securities and Exchange Commission
September 18, 1996
Page 2
limitations expressed herein, we are of the opinion that when the Shares are
issued in accordance with the terms of the Plan, the Shares will be duly
authorized, legally issued, fully paid and non-assessable.
This opinion is limited to the present laws of the State of
California and of the United States of America, and the corporate law of the
State of Delaware.
This opinion is solely for your information in connection with
the offer and sale of the Shares of the Company, and is not, without prior
written consent of this firm, to be quoted in full or in part or otherwise
referred to in any documents nor to be filed with any governmental agency or
other persons, other than with the Commission and various state securities
administrators in connection with the qualification of the Shares, to which
reference and filings we hereby consent. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the 1933 Act or the rules and regulations of the Commission.
Very truly yours,
Buchalter, Nemer, Fields & Younger
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Earl Scheib, Inc.
Beverly Hills, California
We hereby consent to the use in the Registration Statement on Form S-8,
(Registration Numbers 33-______) of our report dated June 26, 1995, relating to
the audit of the consolidated financial statements and schedules of Earl Scheib,
Inc. and Subsidiaries for each of the two years ended April 30, 1995 which are
contained in and incorporated by reference to the Audit Report on Form 10-K for
the year ended April 30, 1996.
BDO SEIDMAN, LLP
Los Angeles, California
September 16, 1996
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Earl Scheib, Inc. on Form S-8 of our report dated July 3, 1996, incorporated by
reference in the Annual Report on Form 10-K of Earl Scheib, Inc. for the year
ended April 30, 1996.
/s/ Deloitte & Touche LLP
Los Angeles, California
September 17, 1996
