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 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 600,000 Shares $23.69 $14,211,984 $4,306.66
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 sum of (i) the product resulting from
multiplying 442,560, 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
$24.71 per share, the average exercise price of such options, and (ii)
the product resulting from multiplying 157,440 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 $20.81 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 18, 1998
- -------------------- Officer and Director
Stephen P. Robeck (Principal Executive Officer)
/s/ Donald A. Kurz President, Co-Chief Executive March 18, 1998
- --------------------- Officer and Director
Donald A. Kurz (Principal Executive Officer)
/s/ Michael J. Welch Executive Vice President, March 18, 1998
- --------------------- Chief Financial Officer
Michael J. Welch (Principal Financial and
Accounting Officer)
/s/ Lawrence Elins Director March 18, 1998
- ---------------------
Lawrence Elins
/s/ Merrill M. Kraines Director March 18, 1998
- ----------------------
Merrill M. Kraines
/s/ Bruce Raben Director March 18, 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
1,640,000 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
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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").
(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 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, 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
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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 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 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
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 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
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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 (or included by reference) 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 17, 1998
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