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
(State or Other Jurisdiction of Incorporation or Organization)
13-3534145
(I.R.S. Employer Identification No.)
131 SOUTH RODEO DRIVE
BEVERLY HILLS, CALIFORNIA 90212
(Address of Principal Executive Offices) (Zip Code)
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
(Name and Address of Agent for Service)
(310) 887-4300
(Telephone Number, Including Area Code, of Agent for Service)
____________
Copies to:
ALAN B. SPATZ, ESQ.
TROOP MEISINGER STEUBER & PASICH, LLP
10940 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 824-7000
_____________
CALCULATION OF REGISTRATION FEE
===============================================================================
Title Of Amount To Proposed Proposed Amount of
Securities To be Registered Maximum Maximum Registration
be Registered Offering Aggregate Fee
Price Per Offering
Share(1) Price(2)
- -------------------------------------------------------------------------------
Common Stock 100,000 Shares $20.81 $2,081,000 $630.61
par value
per share
===============================================================================
(1) Calculated by dividing the proposed maximum aggregate offering price
by the amount to be registered.
(2) 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
100,000, 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
$20.81, the average of the high and low prices of the Common Stock as
reported on the Nasdaq National Market on March 17, 1998.
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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 by reference.
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 this 18th day of March 1998.
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
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Stephen
P. Robeck and Donald A. Kurz his true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, for him and his name, place
and stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the foregoing, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Stephen P. Robeck Chairman, Co-Chief Executive March __, 1998
- ---------------- Officer and Director
Stephen P. Robeck (Principal Executive Officer)
/s/ Donald A. Kurz President, Co-Chief Executive March __, 1998
- --------------------- Officer and Director
Donald A. Kurz (Principal Executive Officer)
/s/ Michael J. Welch Executive Vice President, March __, 1998
- --------------------- Chief Financial Officer
Michael J. Welch (Principal Financial and
Accounting Officer)
/s/ Lawrence Elins Director March __, 1998
- ---------------------
Lawrence Elins
/s/ Merrill M. Kraines Director March __, 1998
- ----------------------
Merrill M. Kraines
/s/ Bruce Raben Director March __, 1998
- ----------------------
Bruce Raben
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EXHIBIT INDEX
Exhibit No. Exhibit Description
- ---------- -------------------
4.1 Equity Marketing, Inc. Non-Employee Stock Option Plan,
as amended
5.1 Opinion of Troop Meisinger Steuber & Pasich, LLP
23.1 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on signature page)
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EXHIBIT 4.1
EQUITY MARKETING, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. 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.
2. Stock Subject to the Plan. The Company may issue and sell a total of
290,000 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.
3. 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 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.
4. 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.
5. Terms and Conditions of Options. Each option granted under the Plan
shall be evidenced by a written agreement containing the following terms and
conditions:
a. 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.
b. 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.
c. 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.
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d. 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.
e. 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.
f. Nontransferability of Options. No option shall be
assignable or transferable 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.
g. 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 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.
h. 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.
6. Change in Control; Capital Changes.
a. 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 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.
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b. 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 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.
c. 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.
d. 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 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
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.
8. 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.
9. Governing Law. The Plan and each option agreement shall be governed in
all respects by the internal laws of the State of California without giving
effect to the provisions relating to conflicts of law.
10. 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 5.1
TROOP MEISINGER STEUBER & PASICH, LLP
10940 Wilshire Boulevard
Los Angeles, California 90024
March 20, 1998
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 the additional 100,000 shares of the
Company's Common Stock $.001 par value per share (the "Shares"), to be issued
under the Company's Non-Employee 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. This consent is not to 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,
Troop Meisinger Steuber & Pasich, LLP
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Exhibit 23.1
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 18,
1997 included in Equity Marketing Inc.'s Form 10-K for the year ended December
31, 1996 and to all references to our Firm included in this registration
statement.
ARTHUR ANDERSEN LLP
Los Angeles, California
March __, 1998
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