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 SPATZ, ESQ.
TROOP MEISINGER STEUBER & PASICH, LLP
10940 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 824-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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<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 $.001 210,000 Shares $ 20.38 $4,279,800 $1296.91
par value per share
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</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 210,000, 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 $20.38, the average of the high and low prices of
the Common Stock as reported on the Nasdaq National Market on
July 7, 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 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. Non-Employee Director 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 500,000 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 35,000 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 30,000 shares of Common Stock will automatically be granted to each
Non-Employee Director on the initial date such Non-Employee Director is elected
as a director by the shareholders and each third time thereafter such
Non-Employee Director is elected as a director by the shareholders. If a
Non-Employee Director first joins the Board of Directors upon election by the
shareholders, such Non-Employee Director would receive both grants of options on
the same date.
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. Other than the option to purchase 35,000 shares of Common
Stock granted to each Non-Employee Director upon his or her initial appointment,
all options granted under this Plan shall become exercisable in three equal
installments of 10,000 shares on each of the first, second and third
anniversaries of the date of grant. 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
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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.
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 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
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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.
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
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 the additional 210,000 shares of the Company's
Common Stock $.001 par value per share (the "Shares"), to be issued under the
Company's Non-Employee Director Stock Option Plan (the "Plan").
As counsel for the Company, we have examined such corporate records, other
documents, and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that in our opinion all necessary corporate proceedings
by the Company have been duly taken to authorize the issuance of the Shares
pursuant to the Plan and that the Shares being registered pursuant to the
Registration Statement, when issued and paid for under the Plan in accordance
with the terms of the Plan, will be duly authorized, validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. 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 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
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