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As filed with the Securities and Exchange Commission on November 5, 1996
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EQUITY MARKETING, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 13-3534145
(State or other juris- (I.R.S. Employer
diction of incorporation Identification
or organization) Number)
</TABLE>
131 SOUTH RODEO DRIVE
BEVERLY HILLS, CALIFORNIA 90212
(310) 887-4300
(Address, including zip code, of registrant's principal executive offices)
EQUITY MARKETING, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(full title of the plan)
___________________
DONALD A. KURZ
131 SOUTH RODEO DRIVE
BEVERLY HILLS, CALIFORNIA 90212
(310) 887-4300
(Name and address and telephone number, including area code, of agent for
service)
___________________
Copies of all communications, including all communications sent to the agent for
service, should be sent to:
MERRILL M. KRAINES, ESQ.
FULBRIGHT & JAWORSKI L.L.P.
666 FIFTH AVENUE
NEW YORK, NEW YORK 10103
(212) 318-3000
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of Securities to be Amount to be offering price per aggregate offering Amount of
registered registered share(1) price (2) registration fee
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<S> <C> <C> <C> <C>
Common Stock $.001 par value
per share........... 40,000 shares $20.25 $810,000 $279.31
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</TABLE>
(1) Calculated by dividing the proposed maximum aggregate offering price by
the amount to be registered.
(2) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee and is the product resulting from
multiplying 40,000, the number of additional shares registered by this
Registration Statement as to which options may be granted under the
Equity Marketing, Inc. Non-Employee Director Stock Option Plan, by
$20.25, the average of the high and low prices of the Common Stock as
reported on the Nasdaq National Market on October 30, 1996.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The contents of the Company's Registration Statement on Form S-8 (File
No. 33-84592), as filed with the Securities and Exchange Commission on
September 30, 1994, are incorporated herein by reference.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe 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
November 4, 1996.
EQUITY MARKETING, INC.
By: /s/Stephen P. Robeck
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Stephen P. Robeck
Chairman and Co-Chief
Executive Officer
By: /s/Donald A. Kurz
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Donald A. Kurz
President and
Co-Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stephen P. Robeck and Donald A. Kurz,
his true and lawful attorney-in-fact, each acting alone, 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, hereby ratifying and confirming all that
said attorneys-in-fact or their substitutes, each acting alone, may lawfully do
or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
Chairman, Co-Chief
Executive Officer and Director
/s/Stephen P. Robeck (Principal Executive Officer) November 4, 1996
- ------------------------------------
(Stephen P. Robeck)
President, Co-Chief
Executive Officer and Director
/s/Donald A. Kurz (Principal Executive Officer) November 4, 1996
- -------------------------------------
(Donald A. Kurz)
/s/Lawrence Elins Director November 4, 1996
- --------------------------------------
(Lawrence Elins)
/s/Merrill M. Kraines Director November 4, 1996
- ------------------------------------
(Merrill M. Kraines)
/s/Bruce Raben Director November 4, 1996
- -----------------------------------
(Bruce Raben)
Senior Vice President
Chief Financial Officer (Principal
/s/Kenneth M. Fisher Financial and Accounting Officer) November 4, 1996
- ------------------------------------
(Kenneth M. Fisher)
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
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<S> <C>
4(a) Equity Marketing, Inc. Non-Employee Director Stock
Option Plan, as amended
4(b) Form of Stock Option Agreement*
5 Opinion of Fulbright & Jaworski L.L.P.
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Fulbright & Jaworski L.L.P. (included
in Exhibit 5).
24 Power of Attorney (see signature page).
</TABLE>
__________________________
* Previously filed as an Exhibit to the Company's Registration Statement
on Form S-8 (No. 33-84592), as filed with the Securities and Exchange
Commission on September 30, 1994, which is incorporated herein by
reference.
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EXHIBIT 4(a)
EQUITY MARKETING, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
A. PURPOSE. The purpose of this Non-Employee Director Stock
Option Plan (the "Plan") is to enable Equity Marketing, Inc. (the "Company") to
provide compensatory stock options to members of its Board of Directors (the
"Board") who are not also employees of the Company and who are first elected or
appointed as directors after the date this Plan becomes effective
("Non-Employee Directors"). It is intended that the Plan will constitute a
"formula plan" within the meaning and for the purposes of Rule 16b-3 issued by
the Securities and Exchange Commission under Section 16 of the Securities
Exchange Act of 1934. The provisions of the Plan and of any option agreement
made pursuant to the Plan will be interpreted and applied accordingly.
B. STOCK SUBJECT TO THE PLAN. The Company may issue and sell a
total of 190,000 shares (subject to equitable adjustment for stock dividends
and certain capital changes) of its common stock, $.001 par value (the "Common
Stock"), pursuant to the Plan. Such shares may be either authorized and
unissued or held by the Company in its treasury. New options may be granted
under the Plan with respect to shares of Common Stock which are covered by the
unexercised portion of an option which has terminated or expired.
C. ADMINISTRATION. The Plan shall be administered by the Board.
Subject to the provisions of the Plan and applicable law, the Board, acting in
its sole and absolute discretion, shall have full power and authority to
interpret the provisions of the Plan and option agreements made under the Plan,
to supervise the administration of the Plan, and to take such other action as
may be necessary or desirable in order to carry
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out the provisions of the Plan. The decisions of the Board as to any disputed
question, including questions of construction, interpretation and
administration, shall be final and conclusive on all persons.
D. AUTOMATIC OPTION GRANTS. Except as otherwise provided herein,
an option to purchase 25,000 shares of Common Stock will automatically be
granted to each Non-Employee Director on the date following the effective date
of the Plan on which he or she is initially appointed or elected as a director
(by the Board or the shareholders, as the case may be), and an option to
purchase an additional 10,000 shares of Common Stock will automatically be
granted to each Non-Employee Director on each anniversary of his or her initial
grant date provided he or she is still serving as a director on such
anniversary.
E. TERMS AND CONDITIONS OF OPTIONS. Each option granted under
the Plan shall be evidenced by a written agreement containing the following
terms and conditions:
1. OPTION PRICE. The purchase price per share shall be
equal to the fair market value of a share of Common Stock on the date the
option is granted which, for so long as the Company's Common Stock is listed on
the NASDAQ National Market System, shall be the closing price per share as
listed on the NASDAQ National Market System on such date.
2. OPTION PERIOD. Unless sooner terminated in
accordance with the provisions hereof, the period during which an option may be
exercised shall be 10 years from the date the option is granted.
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3. EXERCISE OF OPTIONS. No option shall be exercisable
unless the Non-Employee Director to whom the option was granted remains in the
continuous service as a director of the Company for at least six months from
the date the option is granted. All or part of the exercisable portion of an
option may be exercised at any time during the option period, except that,
without the consent of the Board, no partial exercise of an option shall be
made for less than 100 shares. An option may be exercised by transmitting to
the Company (1) a written notice specifying the number of shares to be
purchased, and (2) payment in full of the purchase price, together with the
amount, if any, deemed necessary to enable the Company to satisfy its income
tax withholding obligations with respect to such exercise (unless other
arrangements acceptable to the Board are made with respect to the satisfaction
of such withholding obligations). Notwithstanding anything in the Plan to the
contrary, no option may be exercised unless and until a registration statement
covering the shares of Common Stock issuable upon exercise of options granted
hereunder has been filed with and declared effective by the Securities and
Exchange Commission under the Securities Act of 1933, as amended.
4. PAYMENT OF OPTION PRICE. The purchase price of
shares of Common Stock acquired pursuant to the exercise of an option granted
under the Plan shall be payable in cash or check and/or previously-owned shares
of Common Stock. If the shares of Common Stock are tendered as payment of the
option exercise price, the value of such shares shall be the fair market value
as of the date of exercise. If such tender would result in the issuance of
fractional shares of Common Stock, the Company shall instead return the
difference in cash or by check to the optionee.
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5. RIGHTS AS A SHAREHOLDER. No shares of Common Stock
shall be issued in respect of the exercise of an option granted under the Plan
until full payment therefor has been made. The holder of an option shall have
no rights as a shareholder with respect to any shares covered by an option
until the date a stock certificate for such shares is issued to him or her.
Except as otherwise provided herein, no adjustments shall be made for dividends
or distributions of other rights for which the record date is prior to the date
such stock certificate is issued.
6. NONTRANSFERABILITY OF OPTIONS. No option shall be
assignable or transferrable except upon the optionee's death to a beneficiary
designated by the optionee in accordance with procedures established by the
Board or, if no designated beneficiary shall survive the optionee, pursuant to
the optionee's will or by the laws of descent and distribution. During an
optionee's lifetime, options may be exercised only by the optionee or the
optionee's guardian or legal representative.
7. TERMINATION OF SERVICE. If an optionee ceases to
perform services as a director of the Company for any reason other than death
or permanent disability, then each outstanding option granted to him or her
under the Plan shall terminate on the date three months after the date of such
termination of service or, if earlier, the date specified in the option
agreement. If an optionee's service as a director of the Company is terminated
by reason of the optionee's death or permanent disability, or if the optionee's
service as a director of the Company is terminated by reason of his or her
disability and the optionee dies within one year after such termination of
service as a director, then each outstanding option granted to the optionee
under the Plan shall terminate on the date one year after the date of such
termination of service (or one
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year after the later death of a disabled optionee) or, if earlier, the date
specified in the option agreement. For the purposes hereof, the term
"permanent disability" means the continuous inability of an optionee to perform
the duties of his or her service as a director for ninety (90) consecutive
days, or if during any consecutive twelve (12) month period during his or her
term of office, the inability or unwillingness of the optionees to perform his
or her duties for a total period of ninety (90) days, either consecutively or
not, by reason of ill health, physical or mental illness, or for other causes
beyond the optionee's control.
8. OTHER PROVISIONS. The Board may impose such other
conditions with respect to the exercise of options, including, without
limitation, any conditions relating to the application of federal or state
securities laws, as it may deem necessary or advisable.
F. CHANGE IN CONTROL; CAPITAL CHANGES.
1. CHANGE IN CONTROL. If any event constituting a
"Change in Control of the Company" shall occur, all options granted under the
Plan which are outstanding at the time a Change of Control of the Company
occurs shall immediately become exercisable. A "Change in Control of the
Company" shall be deemed to occur if (1) there shall be consummated (a) any
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of the
Company's Common Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of the
Company's Common Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (b) any
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sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the
Company, or (2) the stockholders of the Company shall approve any plan or
proposal for liquidation or dissolution of the Company, or (3) any person (as
such term is used in Section 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of 40% or more of the
Company's outstanding Common Stock other than pursuant to a plan or arrangement
entered into by such person and the Company, or (4) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the entire Board of Directors shall cease for any reason to constitute a
majority thereof unless the election, or the nomination for election by the
Company's shareholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of the period.
2. CAPITAL CHANGES. In the event of any stock split,
stock dividend or similar transaction which increases or decreases the number
of outstanding shares of Common Stock, appropriate adjustment shall be made by
the Board to the number of shares which may be issued under the Plan, as well
as the maximum number of shares which may be issued to any Non-Employee
Director pursuant to Section 4 hereof, and to the number and option exercise
price per share of Common Stock which may be purchased under any outstanding
options. In the case of a merger, consolidation or similar transaction which
results in a replacement of the Company's Common Stock with stock of another
corporation but does not constitute Change in Control of the Company, the
Company will make a reasonable effort, but shall not be required, to
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replace any outstanding options granted under the Plan with comparable options
to purchase the stock of such other corporation, or will provide for immediate
maturity of all outstanding options, with all options not being exercised
within the time period specified by the Board being terminated.
3. FRACTIONAL SHARES. In the event of any adjustment in
the number of shares covered by any option pursuant to the provisions hereof,
any fractional shares resulting from such adjustment will be disregarded, and
each such option will cover only the number of full shares resulting from the
adjustment.
4. DETERMINATION OF BOARD TO BE FINAL. All adjustments
under this paragraph 6 shall be made by the Board, and its determination as to
what adjustments shall be made, and the extent thereof, shall be final, binding
and conclusive.
G. AMENDMENT AND TERMINATION OF THE PLAN. The Board may amend or
terminate the Plan. Except as otherwise provided in the Plan with respect to
equity changes, any amendment which would increase the aggregate number of
shares of Common Stock as to which options may be granted under the Plan,
materially increase the benefits under the Plan, or modify the class of persons
eligible to receive options under the Plan shall be subject to the approval of
the shareholders of the Company. No amendment or termination may adversely
affect any outstanding option without the written consent of the optionee.
Notwithstanding anything to the contrary contained herein or in any option
agreement made hereunder, the provisions of paragraphs 4 and 5(a) of the Plan
and any other provision of the Plan or of an option agreement relating to the
timing of option grants, the amount of shares covered thereby and the exercise
price thereunder may not be amended more than once every six months, and no
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amendment may be made to the Plan or an option agreement if, as a result of
such amendment, the Plan would no longer qualify as a "formula plan" under Rule
16b-3 issued by the Securities and Exchange Commission under Section 16 of the
Securities Exchange Act of 1934.
H. NO RIGHTS CONFERRED. Nothing contained herein will be deemed
to give any individual any right to be retained or elected or re-elected as a
member of the Board.
I. GOVERNING LAW. The Plan and each option agreement shall be
governed in all respects by the internal laws of the State of New York without
giving effect to the provisions relating to conflicts of law.
J. TERM OF THE PLAN. The Plan shall be effective as of the date
on which stockholder approval of the Plan is obtained. The Plan will terminate
on the date ten years after the date on which it is approved by the
shareholders of the Company, unless sooner terminated by the Board. The rights
of optionees under options outstanding at the time of the termination of the
Plan shall not be affected solely by reason of the termination and shall
continue in accordance with the terms of the option.
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Exhibit 5
[FULBRIGHT & JAWORSKI LLP LETTERHEAD]
November 4, 1996
Equity Marketing, Inc.
131 South Rodeo Drive
Beverly Hills, California 90212
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), on behalf of Equity Marketing,
Inc. (the "Company"), relating to 40,000 shares of the Company's Common Stock,
$.001 par value per share (the "Shares"), to be issued under the Company's
Non-Employee Director Stock Option Plan (the "Plan").
As counsel for the Company, we have examined such corporate records,
other documents, and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that in our opinion all necessary corporate proceedings
by the Company have been duly taken to authorize the issuance of the Shares
pursuant to the Plan and that the Shares being registered pursuant to the
Registration Statement, when issued and paid for under the Plan in accordance
with the terms of the Plan, will be duly authorized, validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Interests of Named Experts and Counsel" in the Registration Statement. This
consent is not be construed as an admission that we are a person whose consent
is required to be filed with the Registration Statement under the provisions of
the Act.
Very truly yours,
FULBRIGHT & JAWORSKI L.L.P.
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Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 9, 1996 included in Equity Marketing, Inc.'s Form 10-K for the year
ended December 31, 1995 and to all references to our Firm included in this
registration statement.
Los Angeles, California
October 31, 1996 ARTHUR ANDERSEN LLP
