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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 8, 2000
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UNITED STATES
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 jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6330 San Vicente Boulevard
Los Angeles, California 90048
(323) 932-4300
(Address of principal executive offices)
EQUITY MARKETING, INC. 2000 STOCK OPTION PLAN
(Full title of the plan)
LELAND P. SMITH
Senior Vice President, General Counsel and Secretary
EQUITY MARKETING, INC.
6330 San Vicente Boulevard
Los Angeles, California 90048
(323) 932-4300
(Name, address and telephone number, including area code, of agent for service)
--------------------------
COPIES TO:
Paul G. Lane, Esq.
Riordan & McKinzie
300 South Grand Avenue, 29th Floor
Los Angeles, California 90071
(213) 629-4824
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE
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common stock, $.001
par value per share 750,000 shares $13.84 $10,383,000 $2,741.11
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, based on
the average of the high and low sales prices for the Company's common stock as
reported on the Nasdaq National Market on September 5, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Equity Marketing, Inc.
(the "Company") with the Securities and Exchange Commission, as noted below, are
incorporated by reference into this registration statement:
(1) The Annual Report of the Company on Form 10-K for the fiscal year
ended December 31, 1999;
(2) The Notice of Annual Meeting and Proxy Statement dated July 21, 2000;
(3) The Quarterly Reports of the Company on Form 10-Q dated March 31, 2000
and June 30, 2000;
(4) The Current Reports of the Company on Form 8-K dated April 11, 2000,
April 24, 2000 and July 20, 2000; and
(5) The description of the Company's common stock contained in the
Registration Statement of the Company on Form 8-A filed on October 26,
1993 (Registration No. 000-22878).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended, and prior to the
filing of a post-effective amendment to the registration statement that
indicates that all securities offered hereby have been sold or that deregisters
all such securities remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing such documents.
Any statement contained herein or in any document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part of this registration statement, except as so modified or
superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the validity of the Company's
common stock being registered hereby have been passed upon for the Company by
Leland P. Smith, General Counsel of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Tenth of the Company's certificate of incorporation provides that
each director shall not be personally liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (a) for any breach of the director's duty of loyalty to the Company or
its stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 174 of
the General Corporation Law of the State of Delaware (the "GCL"), or (d) for any
transaction from which the director derived an improper benefit. If the GCL is
amended to authorize the elimination or limitation of the liability of
directors, then the certificate of incorporation provides that the liability of
the directors shall be limited to the fullest extent provided by the GCL.
Further, the certificate of incorporation states that any modification or repeal
of the foregoing provisions shall be prospective only and not adversely affect
any liability of a director at the time of such repeal.
Article Eleventh of the Company's certificate of incorporation provides
that the Company shall indemnify any director or officer to the full extent
permitted by Section 145 of the GCL. The certificate of incorporation also
states that expenses (including attorneys' fees) incurred by such director or
officer in defending any civil, criminal, administrative or investigative
action, suit or proceeding in advance of the final disposition of any such
action, suit or proceeding for which such director or officer may be entitled to
indemnification thereunder shall be paid upon receipt
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of an undertaking by such director or officer to repay such amount if such
director or officer is ultimately adjudged to not be entitled to such
indemnification.
Article VII of the Company's bylaws, consistent with provisions of the GCL,
provides that the Company shall indemnify any director and officer, or former
director or officer, who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Company) by reason of the fact that he is or was a director or
officer against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding provided that such director or officer acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any criminal action
or proceeding, had no cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
Article VII also requires the Company to indemnify any director or officer,
or former director or officer, who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that such person is or was a director or officer, against expenses (including
attorneys' fees) actually and reasonably incurred in connection with the defense
or settlement of such action or suit provided that such director or officer
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the Company, except that no indemnification may be made
in respect of any claim, issue or matter as to which such director or officer
shall have been adjudged to be liable to the Company unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such action was brought shall determine that despite the adjudication of
liability, such director or officer is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
Article VII further provides that to the extent a director or officer of
the Company has been successful in the defense of any action, suit or proceeding
referred to above or in the defense of any claim, issue or matter therein, he or
she shall be indemnified by the Company against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith;
that any indemnification referred to above shall be made by the Company only as
authorized in the specific case upon a determination, as provided for in the
bylaws, that the director or officer met the applicable standard of conduct;
that any indemnification provided for in Article VII shall not be deemed
exclusive of any other rights to which the director or officer may be entitled;
and that the Company shall have power to purchase and maintain insurance on
behalf of a director or officer of the Company against any liability asserted
against him or her and incurred by him or her in any such capacity, or arising
out of his or her status as such whether or not the Company would have the power
to indemnify him or her against such liabilities under Article VII.
The Company has entered into indemnity agreements with each of its
directors and certain senior officers of the Company. The indemnity agreements
generally indemnify such persons against liabilities arising out of their
service in their capacities as directors, officers, employees or agents of the
Company. The Company may from time to time enter into indemnity agreements with
additional individuals who become officers and/or directors of the Company.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Leland P. Smith, General Counsel of the Company, as to the
legality of the common stock registered hereby.
23.1 Consent of Leland P. Smith, General Counsel of the Company (contained in
the opinion filed as Exhibit 5.1).
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23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (contained on page S-1 hereof).
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED HOWEVER, that paragraphs (1)(i) and (1)(ii) above do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities under the Securities Act of 1933
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final adjudication
of such issue.
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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 Los Angeles, State of California, on this 7th day of
September, 2000.
EQUITY MARKETING, INC.
By: /s/ Donald A. Kurz
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Donald A. Kurz
Chairman of the Board and Chief
Executive Officer
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POWER OF ATTORNEY
We, the undersigned directors and officers of Equity Marketing, Inc. do
hereby severally constitute and appoint Donald A. Kurz, Leland P. Smith and
Edward T. Boyd, and each of them, our true and lawful attorneys and agents, to
do any and all acts and things in our name and behalf in our capacities as
directors and officers and to execute any and all instruments for us and in our
names in the capacities indicated below, which said attorneys and agents, or any
of them, may deem necessary or advisable to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with this
registration statement on Form S-8, including specifically, but without
limitation, power and authority to sign for us or any of us, in our names in the
capacities indicated below, any and all amendments hereto; and we do each hereby
ratify and confirm all said attorneys and agents, or any one of them, shall 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 on behalf
of the registrant and in the capacities and on the dates indicated.
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/s/ Donald A. Kurz Chairman of the Board and Chief Executive
----------------------------- Officer September 7, 2000
Donald A. Kurz (principal executive officer)
/s/ Edward T. Boyd Senior Vice President
----------------------------- (principal financial and accounting officer)
Edward T. Boyd September 7, 2000
/s/ Peter Ackerman Director
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Peter Ackerman September 7, 2000
/s/ Sanford R. Climan Director
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Sanford R. Climan September 7, 2000
/s/ Jeffrey S. Deutschman Director
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Jeffrey S. Deutschman September 7, 2000
Director
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Bruce Raben September 7, 2000
/s/ Stephen P. Robeck Director
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Stephen P. Robeck September 7, 2000
/s/ Mitchell H. Kurz Director
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Mitchell H. Kurz September 7, 2000
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