As filed with the Securities and Exchange Commission on November 14, 1997
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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HOLLYWOOD ENTERTAINMENT CORPORATION
(Exact name of registrant as specified in its charter)
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OREGON 93-0981138
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
25600 SW Parkway Center Drive
Wilsonville, Oregon 97070
(Address of Principal (Zip Code)
Executive Offices)
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Hollywood Entertainment Corporation
1993 Stock Incentive Plan
Hollywood Entertainment Corporation
1997 Employee Nonqualified Stock Option Plan
(Full title of plans)
Donald J. Ekman
Senior Vice President and General Counsel
Hollywood Entertainment Corporation
25600 SW Parkway Center Drive
Wilsonville, OR 97070
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (503) 570-1600
Copy to:
Robert J. Moorman
Stoel Rives LLP
900 SW Fifth Avenue, Suite 2300
Portland, Oregon 97204-1268
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------
Proposed Proposed Amount
Maximum Maximum of
Amount Offering Aggregate Regis-
Title of Securities to Be Price Per Offering tration
to Be Registered Registered(1) Share(1) Price(1) Fee
- ------------------- ------------- --------- ---------- -------
<S> <C> <C> <C> <C>
Common Stock 5,800,000 Shares $11.64375 $77,522,476.71 $23,491.74
- --------------------------------------------------------------------------------------------------------
(1) This Registration Statement registers the following shares:
Name of Plan Number of Shares
------------ ----------------
1993 Stock Incentive Plan 4,800,000
1997 Employee Nonqualified Stock Option Plan 1,000,000
The proposed maximum offering price per share and the proposed maximum
aggregate offering price are estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(h) under the
Securities Act of 1933. Of the shares to be registered, 2,029,000 shares
are subject to options with an aggregate exercise price of $33,614,165.50.
The calculation of the registration fee for the remaining 3,771,000 shares
is based on $11.64375, which was the average of the high and low prices of
the Common Stock on November 12, 1997 as reported in The Wall Street
Journal for Nasdaq National Market issues.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed by Hollywood Entertainment Corporation
(the "Company") with the Securities and Exchange Commission are incorporated
herein by reference:
(a) The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 or the latest prospectus
filed pursuant to rule 424(b) under the Securities Act of 1933 that
contains audited financial statements for the Company's latest fiscal year
for which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by
the annual report or prospectus referred to in (a) above.
(c) The description of the authorized capital stock of the Company con
tained in the Company's registration statement filed under section 12 of
the Securities Exchange Act of 1934, including any amendment or report
filed for the purpose of updating the description.
All reports and other documents subsequently filed by the Company
pursuant to sections 13(a) and (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 hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
Article IV of the Company's 1993B Restated Articles of Incorporation
(the "Articles") requires indemnification of current or former directors or
nominees for director ("directors") of the Company to the fullest extent not
prohibited by the Oregon Business Corporation Act (the "Act"). The effects of
the Articles and the Act (the "Indemnification Provisions") are summarized as
follows:
(a) The Indemnification Provisions grant a right of indemnification in
respect of any action, suit or proceeding (other than an action by or in
the right of the Company) against expenses (including attorney fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred, if the person concerned acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of
the Company, was not adjudged liable on the basis of receipt of an improper
personal benefit and, with respect to any criminal action or proceeding,
had no reasonable cause to believe the conduct was unlawful. The
termination of an action, suit or proceeding by judgment, order,
settlement, conviction or plea of nolo contendere does not, of itself,
create a presumption that the person did not meet the required standards of
conduct.
(b) The Indemnification Provisions grant a right of indemnification in
respect of any action or suit by or in the right of the Company against the
expenses (including attorney fees) actually and reasonably incurred if the
person concerned acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the Company,
except that no right of indemnification will be granted if the person is
adjudged to be liable to the Company.
(c) Every person who has been wholly successful on the merits of a
controversy described in (a) or (b) above is entitled to indemnification as
a matter of right.
(d) Because the limits of permissible indemnification under Oregon law
are not clearly defined, the Indemnification Provisions may provide
indemnification broader than that described in (a) and (b).
Article IV of the Articles provides that the Company will advance to a
director the expenses incurred in defending any action, suit or proceeding in
advance of its final disposition if the director affirms in good faith that he
or she has met the standard of conduct to be entitled to indemnification as
described in (a) or (b) above and undertakes to repay any amount advanced if it
is determined that the person did not meet the required standard of conduct.
II-2
<PAGE>
Article V of the Articles provides that the Company may, in the
discretion of the Board of Directors, indemnify officers, employees and agents
to the same extent that directors are entitled to indemnification.
The Company may obtain insurance for the protection of its directors
and officers against any liability asserted against them in their official
capacities.
The rights of indemnification described above are not exclusive of any
other rights of indemnification to which the persons indemnified may be entitled
under any bylaw, agreement, vote of shareholders or directors or otherwise.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 1993B Restated Articles of Incorporation (incorporated by
reference to Exhibit 3.1 to Amendment No. 2 to the Registrant's
Registration Statement on Form S-1, Registration No. 33-73966
(the "1994 S-1") and to Articles of Amendment filed as Exhibit
4 to Registrant's Registration Statement of Form S-3,
Registration No. 33-96140).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the 1994 S-1.)
5.1 Opinion of Stoel Rives LLP.
23.1 Consent of Price Waterhouse LLP (see page II-7).
23.2 Consent of Coopers & Lybrand, L.L.P. (see page II-8).
23.3 Consent of Stoel Rives LLP (included in Exhibit 5.1).
24.1 Powers of Attorney.
II-3
<PAGE>
Item 9. Undertakings.
(a) 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 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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of the
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
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 paragraphs (a)(1)(i) and (a)(1)(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
by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) 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.
(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.
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<PAGE>
(b) 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 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Wilsonville, State of Oregon, on November 14, 1997.
HOLLYWOOD ENTERTAINMENT CORPORATION
By DONALD J. EKMAN
--------------------------------------
Donald J. Ekman,
Senior Vice President and General
Counsel
II-5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this 14th day of November, 1997.
Signature Title
* MARK J. WATTLES Chairman of the Board, President and
- ---------------------------------- Chief Executive Officer
Mark J. Wattles (Principal Executive Officer)
* F. MARK WOLFINGER Chief Financial Officer
- ---------------------------------- (Principal Financial and Accounting
F. Mark Wolfinger Officer)
DONALD J. EKMAN Senior Vice President, General Counsel
- ---------------------------------- and Director
Donald J. Ekman
* JAMES N. CUTLER, JR. Director
- ----------------------------------
James N. Cutler, Jr.
* RICHARD A. GALANTI Director
- ----------------------------------
Richard A. Galanti
*By DONALD J. EKMAN
----------------------------------
Donald J. Ekman, Attorney-in-Fact
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<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 20, 1997, except as to Note
11, which is as of March 15, 1997, as appearing on page F-1 of Hollywood
Entertainment Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996.
Price Waterhouse LLP
Portland, Oregon
November 12, 1997
II-7
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated February 14, 1995, except for Note 3 as to which
the date is March 29, 1995, on our audits of the financial statements of
Hollywood Entertainment Corporation for the year ended December 31, 1994, which
report appears in the Annual Report on Form 10-K of Hollywood Entertainment
Corporation for the year ended December 31, 1996.
COOPERS & LYBRAND L.L.P.
Portland, Oregon
November 11, 1997
II-8
<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
- ------- --------------------
4.1 1993B Restated Articles of Incorporation (incorporated by
reference to Exhibit 3.1 to Amendment No. 2 to the Registrant's
Registration Statement on Form S-1, Registration No. 33-73966
(the "1994 S-1") and to Articles of Amendment filed as Exhibit 4
to Registrant's Registration Statement of Form S-3, Registration
No. 33-96140).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the 1994 S-1.)
5.1 Opinion of Stoel Rives LLP.
23.1 Consent of Price Waterhouse LLP (see page II-7).
23.2 Consent of Coopers & Lybrand, L.L.P. (see page II-8).
23.3 Consent of Stoel Rives LLP (included in Exhibit 5.1).
24.1 Powers of Attorney.
II-9
EXHIBIT 5.1
November 14, 1997
Board of Directors
Hollywood Entertainment Corporation
25600 SW Parkway Center Drive
Wilsonville, Oregon 97070
We have acted as counsel for Hollywood Entertainment Corporation (the
"Company") in connection with the filing of a Registration Statement on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended,
covering 5,800,000 shares of common stock (the "Shares") of the Company issuable
in connection with the Company's 1993 Stock Incentive Plan and the 1997 Employee
Nonqualified Stock Option Plan (the "Plans"). We have reviewed the corporate
actions of the Company in connection with this matter and have examined those
documents, corporate records, and other instruments we deemed necessary for the
purposes of this opinion.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the state of Oregon; and
2. The Shares have been duly authorized and, when issued pursuant to the
Plans and in accordance with the resolutions adopted by the Board of Directors
of the Company, will be legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
STOEL RIVES LLP
STOEL RIVES LLP
EXHIBIT 24.1
POWER OF ATTORNEY
(1993 Stock Incentive Plan)
(1997 Employee Nonqualified Stock Option Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of HOLLYWOOD ENTERTAINMENT CORPORATION, does hereby constitute
and appoint MARK J. WATTLES and DONALD J. EKMAN and either of them, his true and
lawful attorney and agent to do any and all acts and things and to execute in
his name (whether on behalf of Hollywood Entertainment Corporation or as an
officer or director of said Company, or otherwise) any and all instruments which
said attorney and agent may deem necessary or advisable in order to enable
Hollywood Entertainment Corporation to comply with the Securities Act of 1933,
as amended, and any requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Securities Act of
1933, as amended, of shares of Common Stock of Hollywood Entertainment
Corporation issuable pursuant to the 1993 Stock Incentive Plan and the 1997
Employee Nonqualified Stock Option Plan, including specifically, but without
limitation thereto, power and authority to sign his name (whether on behalf of
Hollywood Entertainment Corporation or as an officer or director of said
Company, or otherwise) to a Registration Statement on Form S-8 and any amendment
thereto (including any post-effective amendment) or application for amendment
thereto in respect to such Common Stock or any exhibits filed therewith; and to
file the same with the Securities and Exchange Commission; and the undersigned
does hereby ratify and confirm all that said attorney and agent shall do or
cause to be done by virtue hereof.
DATED: November 14, 1997
MARK J. WATTLES DONALD J. EKMAN
- ---------------------------------- ----------------------------------
Mark J. Wattles Donald J. Ekman
F. MARK WOLFINGER RICHARD A. GALANTI
- ---------------------------------- ----------------------------------
F. Mark Wolfinger Richard A. Galanti
JAMES N. CUTLER, JR.
- ----------------------------------
James N. Cutler, Jr.
