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.
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 SPATZ, ESQ.
TROOP MEISINGER STEUBER & PASICH, LLP
10940 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 824-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered Share(1) Price(2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 600,000 Shares $20.38 $12,228,000 $3,705.45
par value per share
====================================================================================================================================
</TABLE>
(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 600,000 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 $20.38,
the average of the high and low prices of the Common Stock as
reported on the Nasdaq National Market on July 7, 1998.
<PAGE>
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 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 7th day
of July 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 July 7, 1998
---------------------- Officer and Director
Stephen P. Robeck (Principal Executive Officer)
/S/ DONALD A. KURZ President, Co-Chief Executive July 7, 1998
------------------ Officer and Director
Donald A. Kurz (Principal Executive Officer)
/S/ MICHAEL J. WELCH Executive Vice President, Chief July 7, 1998
-------------------- Financial Officer (Principal Financial
Michael J. Welch and Accounting Officer)
/S/ LAWRENCE ELINS Director July 7, 1998
------------------
Lawrence Elins
/S/ SANFORD R. CLIMAN Director July 7, 1998
---------------------
Sanford R. Climan
/S/ BRUCE RABEN Director July 7, 1998
---------------
Bruce Raben
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EXHIBIT INDEX
EXHIBIT NO. EXHIBIT DESCRIPTION
4.1 Equity Marketing, Inc. 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.
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
2,240,000 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 the Board, or at the
discretion of the Board, a committee (the "Committee") consisting of at least
two directors appointed by and serving at the pleasure of the Board. If the Plan
is administered by the Board, references in the Plan to the "Committee" shall
mean the "Board". Subject to the provisions of the Plan, the Committee, 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
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. No person may receive options to
purchase more than 500,000 shares of Common Stock under the Plan.
(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 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").
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(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. 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).
(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 transferable 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 otherwise
determined 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, 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) 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.
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. 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.
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(c) Definition of Exchange Transaction. For purposes hereof, the
term "Exchange Transaction" means a sale of substantially all of the assets of
the Company, a liquidation or dissolution of the Company, or a merger,
consolidation or similar transaction in which the Company is not the Surviving
Corporation. The determination as to which party to a merger or consolidation is
the "Surviving Corporation" shall be made on the basis of the relative equity
interests of the shareholders in the corporation existing after the transaction,
as follows: if immediately following any merger or consolidation the holders of
outstanding voting securities of the Company immediately prior to the merger or
consolidation own equity securities possessing more than 50% of the voting power
of the corporation existing following the merger or consolidation, then for
purposes of this Plan, the Company shall be the Surviving Corporation. In all
other cases, the Company shall not be the Surviving Corporation. In making the
determination of ownership by the shareholders of a corporation immediately
after the merger or consolidation, equity securities which the shareholders
owned immediately before the merger or consolidation as shareholders of another
party to the transaction shall be disregarded. Further, for purposes of this
Section 6(c) only, outstanding voting securities of a corporation shall be
calculated by assuming the conversion of all equity securities convertible
(immediately or at some future time) into shares entitled to vote.
(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 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 California .
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 5.1
TROOP MEISINGER STEUBER & PASICH, LLP
10940 Wilshire Boulevard
Los Angeles, California 90024
July 7, 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 additional 600,000 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. 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
8
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 23, 1998 included in Equity Marketing Inc.'s Form 10-K for the year
ended December 31, 1997 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Los Angeles, California
July 7, 1998
9
