<PAGE> 1
As filed with the Securities and Exchange Commission on November 4, 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)
DELAWARE 13-3534145
(State or other juris- (I.R.S. Employer
diction of incorporation Identification
or organization) Number)
131 SOUTH RODEO DRIVE
BEVERLY HILLS, CALIFORNIA 90212
(310) 887-4300
(Address, including zip code, of registrant's principal executive offices)
EQUITY MARKETING, INC.
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
<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
------------------------- ------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock $.001 par value
per share........... 300,000 shares $15.34 $4,603,102.68 $1,587.28
</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 sum of (i) the product
resulting from multiplying 267,132, the number of additional shares
registered by this Registration Statement to which options have been
granted (but not exercised) under the Equity Marketing, Inc. Stock
Option Plan, by $14.74 per share, the average exercise price of such
options, and (ii) the product resulting from multiplying 32,868 the
number of additional shares registered by this Registration Statement
as to which options may be granted under the Equity Marketing, Inc.
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. 33-84594), as filed with the Securities and Exchange Commission on
September 30, 1994, are incorporated herein by reference.
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<PAGE> 3
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
---------------------------------
Stephen P. Robeck
Chairman and Co-Chief
Executive Officer
By: /s/Donald A. Kurz
--------------------------------
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
- ------- -----------
<S> <C>
4(a) Equity Marketing, Inc. Stock Option Plan
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. 33-84594), as filed with the Securities and Exchange
Commission on September 30, 1994, which is incorporated herein by
reference.
<PAGE> 1
Exhibit 4(a)
EQUITY MARKETING, INC.
STOCK OPTION PLAN
1. Purpose. The purpose of the Equity Marketing, Inc.
Stock Option Plan (the "Plan") is to enable Equity Marketing, Inc. (the
"Company") and its stockholders to secure the benefits of common stock
ownership by key personnel of the Company and its subsidiaries. The Board of
Directors of the Company (the "Board") believes that the granting of options
under the Plan will foster the Company's ability to attract, retain and
motivate those individuals who will be largely responsible for the
profitability and long-term future growth of the Company.
2. Stock Subject to the Plan. The Company may issue and
sell a total of 1,040,000 shares of its common stock (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 by its terms, by
cancellation or otherwise.
3. Administration. The Plan will be administered by a
committee (the "Committee") consisting of at least two directors appointed by
and serving at the pleasure of the Board. If the Company is covered by Section
16 of the Securities Exchange Act of 1934, then, unless the Board determines
otherwise, the members of the Committee will be "disinterested directors"
within the meaning and for the purposes of Rule 16(b)-3 under said Act.
Subject to the provisions of the Plan, the Committee,
<PAGE> 2
acting in its sole and absolute discretion, will have full power and authority
to grant options under the Plan, to interpret the provisions of the Plan, to
fix and interpret the provisions of 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 out the provisions of the Plan. A
majority of the members of the Committee will constitute a quorum. The
Committee may act by the vote of a majority of its members present at a meeting
at which there is a quorum or by unanimous written consent. The decision of
the Committee as to any disputed question, including questions of construction,
interpretation and administration, will be final and conclusive on all persons.
The Committee will keep a record of its proceedings and acts and will keep or
cause to be kept such books and records as may be necessary in connection with
the proper administration of the Plan.
4. Eligibility. Options may be granted under the Plan
to present or future key employees of the Company or a subsidiary of the
Company (a "Subsidiary") within the meaning of Section 424(f) of the Internal
Revenue Code of 1986 (the "Code"), and to consultants to the Company or a
Subsidiary who are not employees. Options may also be granted to directors of
the Company who are not employees of or consultants to the Company and/or a
Subsidiary. Subject to the provisions of the Plan, the Committee may from time
to time select the persons to whom options will be granted, and will fix the
number of shares covered by each such option and establish the terms and
conditions thereof (including, without limitation, the exercise price,
restrictions on exercisability of the option and/or on the disposition of the
shares of Common Stock issued upon exercise thereof, and whether or not the
option is to be
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treated as an incentive stock option within the meaning of Section 422 of the
Code (an "Incentive Stock Option").
5. Terms and Conditions of Options. Each option granted
under the Plan will be evidenced by a written agreement in a form approved by
the Committee. Each such option will be subject to the terms and conditions
set forth in this paragraph and such additional terms and conditions not
inconsistent with the Plan as the Committee deems appropriate.
(a) Option Exercise Price. In the case of an
option which is not treated as an Incentive Stock Option, the exercise price
per share may not be less than the par value of a share of Common Stock on the
date the option is granted; and, in the case of an Incentive Stock Option, the
exercise price per share may not be less than 100% of the fair market value of
a share of Common Stock on the date the option is granted (110% in the case of
an optionee who, at the time the option is granted, owns stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Company or a Subsidiary (a "ten percent shareholder")). For purposes hereof,
the fair market value of a share of Common Stock on any date will be equal to
the closing sale price per share as published by a national securities exchange
on which shares of the Common Stock are traded on such date or, if there is no
sale of Common Stock on such date, the average of the bid and asked prices on
such exchange at the closing of trading on such date or, if shares of the
Common Stock are not listed on a national securities exchange on such date, the
closing price or, if none, the average of the bid and asked prices in the over
the counter market at the close of trading on such date, or if the Common Stock
is not traded on a national securities exchange or the
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over the counter market, the fair market value of a share of the Common Stock
on such date as determined in good faith by the Committee.
(b) Option Period. The period during which an
option may be exercised will be fixed by the Committee and will not exceed ten
years from the date the option is granted (five years in the case of an
Incentive Stock Option granted to a "ten percent shareholder").
(c) Exercise of Options. No option will become
exercisable unless the person to whom the option is granted remains in the
continuous employ or service of the Company or a Subsidiary for at least one
year (or for such other period as the Committee may designate) from the date
the option is granted. The Committee will determine and will set forth in the
option agreement any vesting or other restrictions on the exercisability of the
option, subject to any earlier termination of the option required hereunder.
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
Committee, no partial exercise of an option may be for less than 25% of the
number of shares originally covered by the option. 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 of the exercise price in cash or by
personal check or by such other means or in such other manner of payment as the
Committee may permit, together with the amount, if any, deemed necessary by the
Committee to enable the Company to satisfy its income tax withholding
obligations with respect to such exercise (unless other arrangements acceptable
to the Company are made with respect to the satisfaction of such withholding
obligations).
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(d) Payment of Exercise Price. The purchase
price of shares of Common Stock acquired pursuant to the exercise of an option
granted under the Plan may be paid in cash and/or such other form of payment as
may be permitted under the option agreement, including, without limitation,
previously-owned shares of Common Stock.
(e) Rights as a Stockholder. No shares of Common
Stock will 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 will
have no rights as a stockholder 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.
(f) 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 Committee 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.
(g) Termination of Employment or Other Service.
Unless extended by the Committee, if an optionee ceases to be employed by or to
perform services for the Company and any Subsidiary for any reason other than
death or disability (defined below), then each outstanding option granted to
him or her under the Plan will terminate on the date of such termination of
employment or service, or,
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<PAGE> 6
if the optionee's employment is terminated by the Company without cause
(defined below), three months after such date. If an optionee's employment or
service is terminated by reason of the optionee's death or disability (or if
the optionee's employment or service is terminated by reason of his or her
disability and the optionee dies within one year after such termination of
employment or service), then each outstanding option granted to the optionee
under the Plan will terminate on the date one year after the date of such
termination of employment or service (or one year after the later death of a
disabled optionee) or, if earlier, the date specified in the option agreement.
For purposes hereof, the term "disability" means the inability of an optionee
to perform the customary duties of his or her employment or other service for
the Company or a Subsidiary by reason of a physical or mental incapacity which
is expected to result in death or be of indefinite duration; and the term
"cause" means (1) failure or refusal by optionee to perform the duties of his
or her employment with the Company, (2) commission by the optionee of a crime
involving moral turpitude, or (3) the optionee's dishonesty or willful
engagement in conduct which is injurious to the business or reputation of the
Company, all as determined by the Board in its sole discretion.
(h) Transfer Restrictions; Repurchase Option.
Notwithstanding anything to the contrary contained herein, Common Stock
acquired pursuant to the exercise of an option shall not be transferable
without the consent of the Board (acting in its sole and absolute discretion)
until the earliest of (a) the date on which the Company completes its first
offering of stock pursuant to a registration statement under the Securities Act
of 1933, as amended, with a minimum net proceeds to the
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<PAGE> 7
Company and/or its controlling stockholders of $10 million; (b) the date on
which occurs an Exchange Transaction (as defined in paragraph 6(c)) in respect
of which the stockholders of the Company receive stock in another company which
is traded on a national securities exchange or in the over the counter market;
or (c) the date immediately following the date on which the Company's
repurchase option (described in the next sentence) expires. Until the first
anniversary of the date of the termination of an optionee's employment with the
Company and its Subsidiaries (or, if later, the first anniversary of the date
his or her option is exercised), the Company (or its designee) shall have the
right, exercisable in its sole discretion, to purchase from the optionee (or
the successor of a deceased optionee, as the case may be) all of the shares of
Common Stock acquired by the optionee (or by the optionee's successor), to the
extent such shares are otherwise nontransferable in accordance with the
preceding sentence, for a purchase price equal to the fair market value of such
shares as determined by the Company. At the election of the Company, all or
part of such purchase price may be payable in substantially equal annual or
more frequent installments over a period not to exceed five years, together
with interest at least equal to the Citibank, N.A. prime rate in effect on the
date the Company's repurchase option is exercised.
(i) Other Provisions. The Committee 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.
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<PAGE> 8
6. Capital Changes, Reorganization, Sale.
(a) Adjustments Upon Changes in Capitalization.
The aggregate number and class of shares for which options may be granted under
the Plan, the number and class of shares covered by each outstanding option and
the exercise price per share shall all be adjusted proportionately or as
otherwise appropriate to reflect any increase or decrease in the number of
issued shares of Common Stock resulting from a split-up or consolidation of
shares or any like capital adjustment, or the payment of any stock dividend,
and/or to reflect a change in the character or class of shares covered by the
Plan arising from a readjustment or recapitalization of the Company's capital
stock.
(b) Cash, Stock or Other Property for Stock.
Except as otherwise provided in this subparagraph, in the event of an Exchange
Transaction (as defined below), all optionees will be permitted to exercise
their outstanding options in whole or in part (whether or not otherwise
exercisable) immediately prior to such Exchange Transaction, and any
outstanding options which are not exercised before the Exchange Transaction
will thereupon terminate. Notwithstanding the preceding sentence, if, as part
of the Exchange Transaction, the stockholders of the Company receive capital
stock of another corporation ("Exchange Stock") in exchange for their shares of
Common Stock, and if the Board, in its sole discretion, so directs, then all
outstanding options will be converted into options to purchase shares of
Exchange Stock. The amount and price of converted options will be determined
by adjusting the amount and price of the options granted hereunder on the same
basis as the determination of the number of shares of Exchange Stock the
holders of Common Stock
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<PAGE> 9
will receive in the Exchange Transaction and, unless the Board determines
otherwise, the vesting conditions with respect to the converted options will be
substantially the same as the vesting conditions set forth in the original
option agreement.
(c) Definition of Exchange Transaction. For
purposes hereof, the term "Exchange Transaction" means a merger (other than a
merger of the Company in which the holders of Common Stock immediately prior to
the merger have the same proportionate ownership of Common Stock in the
surviving corporation immediately after the merger), consolidation, acquisition
of property or stock, separation, reorganization (other than a mere
reincorporation or the creation of a holding company), liquidation of the
Company or any other similar transaction or event so designated by the Board in
its sole discretion, as a result of which the stockholders of the Company
receive cash, stock or other property in exchange for or in connection with
their shares of Common Stock.
(d) 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.
(e) 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.
7. 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
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<PAGE> 10
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
Company's stockholders. No amendment or termination may affect adversely any
outstanding option without the written consent of the optionee.
8. No Rights Conferred. Nothing contained herein will
be deemed to give any individual any right to receive an option under the Plan
or to be retained in the employ or service of the Company or any Subsidiary.
9. Governing Law. The Plan and each option agreement
shall be governed by the laws of the State of New York.
10. Decisions and Determinations of Committee to be
Final. Except to the extent rights or powers under this Plan are reserved
specifically to the discretion of the Board, all decisions and determinations
of the Committee are final and binding.
11. Term of the Plan. The Plan shall be effective as of
January 1, 1992, the date on which it was adopted by the Board and approved by
the stockholders of the Company. The Plan will terminate on December 31, 2001,
the date ten years after the date of adoption, 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 (as
then in effect or thereafter amended).
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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 300,000 shares of the Company's Common Stock,
$.001 par value per share (the "Shares"), to be issued under the Company's
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.
<PAGE> 1
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.
ARTHUR ANDERSEN LLP
Los Angeles, California
October 31, 1996
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