As filed with the Securities and Exchange Commission on July 25, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MOVIEFONE, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3757816
(State of incorporation)
(I.R.S. employer identification no.)
4 World Trade Center
New York, New York 10048
(212) 504-7442
(Address of principal executive offices) (Zip code)
MOVIEFONE, INC.
1994 STOCK OPTION PLAN
(Full title of the Plan)
Andrew R. Jarecki
4 World Trade Center
New York, New York 10048
(212) 504-7442
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Gregory A. Fernicola, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
(212) 735-3000
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
Proposed Proposed Amount of
Title of Amount to Maximum Maximum Registration
Securities be Offering Price Aggregate Fee
to be Registered Per Share (1) Offering
Registered Price
- ------------------------------------------------------------------------------
Class A Common
Stock, par value
$.01 per share 361,694 $ 3.19 $1,153,803.86 $ 397.86
78,000 4.00 312,000.00 107.59
137,000 4.38 600,060.00 206.92
10,000 3.63 36,300.00 12.52
103,000 4.19 431,570.00 148.82
27,000 11.50 310,500.00 107.07
Total 183,306 4.00(2) 733,224.00 252.84
_________ _____________ __________
900,000 $3,577,457.86 $1,233.62
(1) Computed pursuant to Rule 457 (h)(1) under the
Securities Act of 1933 (the "Securities Act").
(2) Estimated pursuant to Rule 457(c) and (h) under
the Securities Act on the basis of the average of
the high and low sales prices of the Class A
Common Stock as reported on the the Nasdaq
National Market as of July 22, 1996.
EXPLANATORY NOTE
The Reoffer Prospectus which is filed as a part of this
Registration Statement has been prepared in accordance with the
requirements of Part I of Form S-3 and may be used for reoffers
or resales of the Common Stock of MovieFone, Inc., a Delaware
corporation (the"Company"), acquired by "affiliates" (as such
term is defined in Rule 405 of the General Rules and Regulations
under the Securities Act of 1933) pursuant to the exercise of
options under the Company's 1994 Stock Option Plan.
SUBJECT TO COMPLETION, DATED JULY 25, 1996
REOFFER PROSPECTUS
MOVIEFONE, INC.
505,194 SHARES OF CLASS A COMMON STOCK
This Reoffer Prospectus (the "Prospectus") is being used in
connection with the offering by certain selling stockholders (the
"Selling Stockholders") of MovieFone, Inc. (the "Company") who
may be deemed "affiliates" of the Company (as such term is
defined in Section 405 of the General Rules and Regulations under
the Securities Act of 1933, as amended (the "Securities Act")) of
shares of Class A Common Stock, par value $.01 per share (the
"Common Stock"), of the Company, which may be acquired by them
and are available to be resold by them pursuant to the Company's
1994 Stock Option Plan (the "Plan").
The Selling Stockholders may offer to sell the Common Stock
covered by this Prospectus, from time to time, in one or more
transactions, at prices and upon terms then obtainable on the
Nasdaq National Market, in negotiated transactions, in a
combination of any such methods of sale, or otherwise.
The Company will not receive any of the proceeds from the
sales of the Common Stock. All expenses of registration incurred
in connection with this offering are being borne by the Company,
but all brokerage commissions and other expenses incurred by
individual Selling Stockholders will be borne by such Selling
Stockholders.
The Common Stock is listed on the Nasdaq National Market
under the trading symbol "MOFN".
____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
____________________
The date of this Reoffer Prospectus is July 25, 1996
TABLE OF CONTENTS
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . . . . 2
GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . 4
SELLING STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . 4
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . 5
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . 6
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934 (the
"Exchange Act"), and in accordance therewith files reports and
other information with the Securities and Exchange Commission
(the "Commission"). The Company has furnished and intends to
furnish reports to its stockholders, which will include financial
statements audited by its independent accountants, and such other
reports as it may determine to furnish or as required by law,
including Sections 13 and 15(d) of the Exchange Act. Reports,
proxy statements and other information can be inspected and
copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following Regional Offices of
the Commission: Seven World Trade Center, 13th Floor, New York,
NY 10048 and 500 West Madison Street, Suite 1400, Chicago, IL
60661. Copies of such material can also be obtained from the
Public Reference Section of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. In addition, such material can be inspected at the
offices of the National Association of Securities Dealers, Inc.
at 1735 K Street, N.W., Washington, D.C. 20006. The Commission
maintains a website that contains reports, proxy and information
statements and other information regarding registrants that file
electronically with the Commission. The address of such site is
http://www.sec.gov.
The Company has filed a registration statement (the
"Registration Statement") on Form S-8 with respect to the Common
Stock offered hereby with the Commission under the Securities
Act. This Prospectus, which constitutes a part of the
Registration Statement, does not contain all the information set
forth in the Registration Statement, certain items of which are
contained in schedules and exhibits to the Registration Statement
as permitted by the rules and regulations of the Commission.
Statements contained in this Prospectus as to the contents of any
agreement, instrument or other document referred to are not
necessarily complete. With respect to each such agreement,
instrument or other document filed as an exhibit to the
Registration Statement, reference is made to the exhibit for a
more complete description of the matter involved, and each such
statement shall be deemed qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the
Commission and are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995 containing audited financial
statements for the fiscal year ended December 31, 1995 (File No.
0-23600).
(2) The Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 1996 (File No. 0-23600).
(3) The description of the Common Stock contained in
the Company's Registration Statement on Form 8-A (File No. 0-
23600).
(4) The Company's Registration Statement on Form S-1
(File No. 33-76062).
All documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Common Stock shall be deemed
to be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing of such documents. Any
statement contained in this Prospectus or in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
The Company will provide without charge to each person
to whom a copy of this Prospectus is delivered, upon the written
or oral request of such person, a copy of any or all of the
documents referred to above which have been or may be
incorporated by reference herein (other than exhibits to such
documents unless such exhibits are specifically incorporated by
reference in such documents). Requests for such copies should be
directed to Adam H. Slutsky, MovieFone, Inc., 4 World Trade
Center, New York, New York 10048 (telephone (212) 504-7442).
GENERAL
The Company is the leading provider of interactive
telephone advertising, information, and teleticketing services to
the motion picture industry and moviegoers through its
interactive telephone movie guide ("MovieFone"). MovieFone,
commonly known by its trademark telephone numbers such as 777-
FILM , provides moviegoers with movie listings for approximately
10,000 movie screens (representing more than 95 percent of the
total movie screens in the Company's markets and approximately 35
percent of the total screens in the United States) and the
ability to purchase tickets in advance by credit card for
approximately 1,830 of these screens (approximately 19 percent of
the total screens served by MovieFone). The Company currently
operates in 27 markets: New York, Los Angeles, San Francisco,
Boston, Chicago, Dallas/Ft. Worth, Miami, Denver, Philadelphia,
San Diego, Houston, Cleveland, Washington, D.C., Atlanta, Palm
Springs, Santa Barbara, Minneapolis/St. Paul, Sacramento,
Seattle, Tampa/St. Petersburg, Orlando, Phoenix, Detroit, Las
Vegas, Kansas City, Cincinnati and its first international
market, Toronto. The Company also provides "Private Label"
MovieFone systems for individual theater chains. During the year
ended December 31, 1995, the Company received approximately 45.0
million MovieFone calls and sold approximately 2.2 million
tickets via teleticketing.
At the beginning of each call, MovieFone callers hear a
20-second advertisement for an upcoming movie (the "Feature
Billboard"), after which they access movie listings by selecting
a movie and theater using the buttons on their touch-tone
telephone. MovieFone provides these listings free of charge and,
for a $1.00 to $1.50 fee, offers callers the opportunity to
purchase tickets in advance, thereby avoiding ticket-buyers lines
and the disappointment of being turned away from a sold-out show.
The Feature Billboard advertisement, which the Company sells
primarily to motion picture studios on a per-call basis, provides
these advertisers with a highly-targeted medium for marketing
their movies, with the added benefit that it is linked to a
direct ticket-selling mechanism.
The Company's primary sources of revenue include (i)
telephone-based advertising sales and promotional services on
MovieFone to motion picture studios and other advertisers ($5.1
million, $4.1 million, and $2.4 million in 1995, 1994 and 1993
respectively), (ii) sponsorships and other promotional services
to local media and credit card companies ($3.7 million, $2.1
million, and $1.1 million in 1995, 1994 and 1993, respectively)
and (iii) service fees for movie tickets sold to the public via
MovieFone's teleticketing service ($2.1 million, $1.9 million and
$1.1 million in 1995, 1994 and 1993, respectively).
The Company was incorporated in Delaware in March 1994
for the purpose of acquiring PromoFone, a California corporation
("PromoFone"), and The Teleticketing Company, L.P., a Delaware
limited partnership ("The Teleticketing Company"). Immediately
prior to the consummation of the Company's initial public
offering on May 13, 1994, each of the security holders of
PromoFone and each of the partners of The Teleticketing Company
transferred their respective ownership interests in PromoFone
(including options to purchase common stock of PromoFone) and The
Teleticketing Company to the Company in exchange for shares of
the Company's Class A and Class B Common Stock (and options to
purchase the Company's Class A Common Stock) (the
"Reorganization"). As a result of the Reorganization, PromoFone
and The Teleticketing Company became wholly-owned by the Company.
PromoFone was formed in 1989 and has provided MovieFone services
since that time, and teleticketing services from April 1991 to
March 1992. The Teleticketing Company was formed in March 1992
at which time it commenced providing the teleticketing services
now being provided by the Company.
The principal executive offices of the Company are
located at 4 World Trade Center, New York, New York 10048, and
the Company's telephone number is (212) 504-7442.
The shares of Common Stock offered hereby will be
acquired by the Selling Stockholders pursuant to the Plan and
will be sold for the account of the Selling Stockholders.
Prospective purchasers should carefully consider the
risks of investing in the Common Stock. Prospective purchasers of
the Common Stock are referred to the Company's Registration
Statement on Form S-1 (File No. 33-76062) and incorporated by
reference into this Reoffer Prospectus, which contains a
description of the risks of investing in the Common Stock.
USE OF PROCEEDS
All of the shares of Common Stock offered hereby are
being offered by the Selling Stockholders. The Company will not
receive any proceeds from sales of Common Stock by the Selling
Stockholders.
SELLING STOCKHOLDERS
The following table sets forth: (i) the name and
position of each of the Selling Stockholders as of the date of
this Prospectus; (ii) the number of shares of Common Stock owned
by each Selling Stockholder as of June 30, 1996; (iii) the number
of shares of Common Stock covered by this Prospectus; and (iv)
the amount and the percentage of the Common Stock to be owned by
each Selling Stockholder after completion of this offering,
assuming the sale of all shares of Common Stock covered by this
Prospectus.
Shares Owned
After Offering
--------------
Shares
Owned as of
June 30, 1996 Shares Percen-
Name and Position (1) Offered Number tage
__________________ ______________ _________ ________ ________
Andrew R. Jarecki 1,438,199 (2) 30,429 (2) 1,407,780 24.8
Chief Executive
Officer
Adam M. Slutsky 280,002 174,722 105,280 1.8
Chief Financial
Officer and
Chief Operating
Officer
J. Russell 301,534 105,429 196,105 3.4
Leatherman
President
John Ventura 43,500 43,500 0 *
Sr. Vice
President,
Theater Systems
Marc S. Hollander 30,073 28,823 1,250 *
Vice President,
Computer
Systems
Robert Gukeisen 416,639 24,429 392,210 6.9
Vice President,
Systems
Development
Thomas A. Jarecki 188,996 34,646 154,350 2.7
Vice President,
Director of
Operations
Shlomo Sudry 24,216 24,216 0 *
Vice President,
Theater
Systems
Development
Mark N. Kaplan 15,000 13,000 2,000 *
Director
George H. 35,260 13,000 22,260 *
McLaughlin
Director
Strauss Zelnick 20,500 13,000 7,500 *
Director
______________
* less than 1%
(1) Includes shares of Common Stock underlying options granted
to the Selling Stockholders under the Company's 1994 Stock
Option Plan, whether or not exercisable as of, or within 60
days of June 30, 1996.
(2) Includes 1,407,770 shares held by the The Timber Acres Trust
II. Mr. Jarecki and Mr. Eugene Eliasoph, as co-trustees of
this trust (the beneficiaries of which are Mr. Jarecki and
his lineal descendants), share investment and voting control
with respect to these shares.
The preceding table reflects all Selling Stockholders
who are eligible to reoffer and resell Common Stock, whether or
not they have a present intent to do so. There is no assurance
that any of the Selling Stockholders will sell any or all of the
Common Stock offered by them hereunder. The inclusion in the
foregoing table of the individuals named therein shall not be
deemed to be an admission that any such individuals are
"affiliates" of the Company.
This Prospectus may be amended or supplemented from
time to time to add or delete Selling Stockholders.
PLAN OF DISTRIBUTION
The shares of Common Stock being sold by the Selling
Stockholders are for their own accounts. The Company will not
receive any of the proceeds from such sales of the Common Stock.
The distribution of the Common Stock by the Selling
Stockholders may be effected from time to time, in one or more
transactions, at prices and upon terms then obtainable on the
Nasdaq National Market, at prices related to the prevailing
market prices, at negotiated prices or otherwise. In the event
that one or more brokers or dealers sells Common Stock it may do
so by purchasing Common Stock as principal or by selling the
Common Stock as agent. If sales are made through brokers or
dealers, commissions and fees will be paid accordingly by the
Selling Stockholders.
LEGAL MATTERS
The legality of the Common Stock in respect of which
this Prospectus is being delivered will be passed on for the
Company by Skadden, Arps, Slate, Meagher & Flom, New York, New
York. Mark N. Kaplan, a partner of Skadden, Arps, Slate, Meagher
& Flom, has been a Director of the Company since March 1994 and
holds 2,000 shares of Common Stock and options to purchase 13,000
shares of Common Stock.
EXPERTS
The consolidated financial statements incorporated in
this prospectus by reference from the Company's Annual Report on
Form 10-K for the year ended December 31, 1995 have been audited
by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have
been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN
THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
OTHER INFORMATION AND REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY SELLING STOCKHOLDER.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. HOWEVER, IF ANY
MATERIAL CHANGE OCCURS WHILE THIS PROSPECTUS IS REQUIRED BY LAW
TO BE DELIVERED, THIS PROSPECTUS WILL BE AMENDED OR SUPPLEMENTED
ACCORDINGLY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER
THAN THE SHARES OFFERED BY THIS PROSPECTUS, NOR DOES IT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY
THE SHARES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
MOVIEFONE, INC.
505,194 SHARES OF CLASS A COMMON STOCK
PROSPECTUS
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information called for by Part I of Form S-8 is
currently included in the prospectus, dated July 25, 1996 (the
"Plan Prospectus"), which is to be distributed to participants in
the 1994 Stock Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and
Exchange Commission (the "Commission") by the registrant,
pursuant to the Securities Act of 1933 (the "Securities Act") and
the Securities Exchange Act of 1934 (the "Exchange Act"), are
incorporated by reference in this registration statement.
1. The Company's Annual Report on Form 10-K for
the Fiscal Year ended December 31, 1995 containing audited
financial statements for the fiscal year ended December 31, 1995
(File No. 0-23600).
2. The Company's Quarterly Report on Form 10-Q
for the fiscal quarter ended March 31, 1996 (File No. 0-23600).
3. The description of the Common Stock contained
in the Company's Registration Statement on Form 8-A (File No. 0-
23600).
4. The Company's Registration Statement on Form
S-1 (File No. 33-76062).
All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents. Any statement
contained in a 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 incorporated or deemed to be incorporated
by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's By-Laws and Certificate of Incorporation
provide that the Company shall, as the Board of Directors
determine from time to time to the full extent permitted by the
General Corporation Law of the State of Delaware, as amended from
time to time, indemnify all directors and officers of the
Company. Section 145 of the Delaware General Corporation Law
provides in part that a corporation shall have the power to
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit
or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and with respect to any criminal action or
proceeding, had not reasonable cause to believe his conduct was
unlawful. Similar indemnity is authorized for such persons
against expenses (including attorney's fees) actually and
reasonably incurred in defense or settlement of any threatened,
pending or completed action or suit by or in the right of the
corporation, if such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best
interests of the corporation, and provided further (unless a
court of competent jurisdiction otherwise provides) such person
shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific
case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee
has met the applicable standard of conduct.
Additionally, the Certificate of Incorporation
eliminates in certain circumstances the monetary liability of
directors of the Company for breach of their fiduciary duty as
directors. This provision does not eliminate the liability of a
director (i) for a breach of the director's duty of loyalty to
the Company or its stockholders; (ii) for acts or omissions by
the director not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) for liability
arising under Section 174 of the Delaware General Corporation Law
(relating to the declaration of dividends and purchase or
redemption of shares in violation of the Delaware General
Corporation Law); or (iv) for any transaction from which the
director derived an improper personal benefit.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of
the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
The Company's 1994 Stock Option Plan provides that no
member of the Board of Directors or the committee thereof that
administers such plan shall be liable for any action taken or
determination made in good faith with respect to such plan.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (File
No. 33-76062)).
4.2 By-Laws of the Company (incorporated by reference
to Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (File No. 33-76062)).
4.3 Specimen of Class A Common Stock Certificate
(incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-1 (File
No. 33-76062)).
4.4 1994 Stock Option Plan (incorporated by reference
to Exhibit 10.1 to the Company's Registration
Statement on Form S-1 (File No. 33-76062)).
4.5 Amendment Number One to the MovieFone, Inc. 1994
Stock Option Plan (incorporated by reference to
Exhibit A to the Company's 1996 Proxy Statement
pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (File No. 0-23600)).
4.6 Form of Stock Option Agreement.
5 Opinion of Skadden, Arps, Slate, Meagher & Flom
regarding the legality of the securities being
registered.
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom
(included in its opinion filed as Exhibit 5).
23.2 Consent of Deloitte & Touche LLP, independent
auditors.
24 Powers of Attorney (included on the signature page
of this Registration Statement).
ITEM 9. REQUIRED UNDERTAKINGS.
The undersigned registrant hereby undertakes:
A. 1. To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
a. To include any prospectus required
by Section 10(a)(3) of the Securities Act;
b. 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;
c. 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 (A)(1)(a) and (A)(1)(b) 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 Commission by the
registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement.
2. That, for the purpose of determining any
liability under the Securities Act, 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.
B. The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act, (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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.
C. Insofar as indemnification for liabilities arising
under the Securities Act 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 the 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
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 New York, State of New York, on this 23rd of July, 1996.
MOVIEFONE, INC.
By: /s/ Andrew R. Jarecki
Name: Andrew R. Jarecki
Title: Chief Executive Officer
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below constitutes and appoints
each of Andrew R. Jarecki and Adam H. Slutsky, his
attorney-in-fact, with the power of substitution, for him in any
and all capacities, to sign any amendments to this registration
statement (including post-effective amendments), and to file the
same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act,
this Registration Statement has been signed by the following
persons in the capacities and on the date indicated.
NAME TITLE DATE
/s/ Dr. Henry G. Jarecki Chairman of the July 23, 1996
Dr. Henry G. Jarecki Board of Directors
/s/ Andrew R. Jarecki Chief Executive July 23, 1996
Andrew R. Jarecki Officer (principal
executive officer);
Director
/s/ Adam H. Slutsky Chief Operating July 23, 1996
Adam H. Slutsky Officer and Chief
Financial Officer
(principal financial
and accounting
officer); Director
/s/ Mark N. Kaplan Director July 23, 1996
Mark N. Kaplan
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page No.
4.1 Certificate of Incorporation of the
Company (incorporated by reference
to Exhibit 3.1 to the Company's
Registration Statement on Form S-1
(File No. 33-76062)).
4.2 By-Laws of the Company (incorporated
by reference to Exhibit 3.2 to the
Company's Registration Statement on
Form S-1 (File No. 33-76062)).
4.3 Specimen of Class A Common Stock
Certificate (incorporated by
reference to Exhibit 4.1 to the
Company's Registration Statement on
Form S-1 (File No. 33-76062)).
4.4 1994 Stock Option Plan (incorporated
by reference to Exhibit 10.1 to the
Company's Registration Statement on
Form S-1 (File No. 33-76062)).
4.5 Amendment Number One to the
MovieFone, Inc. 1994 Stock Option
Plan (incorporated by reference to
the Company's 1996 Proxy Statement
pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(File No. 0-23600)).
4.6 Form of Stock Option Agreement.
5 Opinion of Skadden, Arps, Slate,
Meagher & Flom regarding the
legality of the securities being
registered.
23.1 Consent of Skadden, Arps, Slate,
Meagher & Flom (included in its
opinion filed as Exhibit 5).
23.2 Consent of Deloitte & Touche LLP,
independent auditors.
24 Powers of Attorney (included on the
signature page of this Registration
Statement).
Exhibit 4.6
FORM OF STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "Option Agree-
ment") made this ___ day of ____, ____, between
MovieFone, Inc., a Delaware corporation (the "Company"),
and __________ (the "Optionee").
Pursuant to the MovieFone, Inc. 1994 Stock
Option Plan (the "Plan"), the Optionee is hereby granted,
on the terms and conditions set forth herein (and subject
to the terms and provisions of the Plan), a qualified
stock option (an "Option") to purchase shares of the
Company's Class A Common Stock (the "Stock"). Capital-
ized terms which are not defined in this Option Agreement
will have the meanings set forth in the Plan.
1. Number of Shares of Stock and Purchase
Price. The Optionee is hereby granted an Option to
purchase _____ shares of Stock (the "Option Shares") at a
purchase price equal to $_____ per share (the "Option
Price"), pursuant to the terms of this Option Agreement
and the provisions of the Plan.
2. Period of Option and Conditions of Exer-
cise.
(a) The Option shall be deemed to have
been granted on _____ ___, ____ (the "Date of Grant")
and, unless the Option is previously terminated pursuant
to this Option Agreement or the Plan, the Option shall
terminate on April 2nd, 2006. Upon the termination of
the Option, all rights of the Optionee hereunder shall
cease.
(b) Subject to the provisions of the Plan
and this Option Agreement, the Option shall become exer-
cisable as to 20 percent (20%) of the Option Shares on
each July 5th, 1996, 1997, 1998, 1999, and 2000 respec-
tively; provided that, all Options shall become fully
vested and exercisable upon the occurrence of a Change of
Control.
3. Termination of Employment.
(a) Except as provided in this Section 3,
Options may not be exercised after the Optionee has
ceased to be employed by the Company or a Subsidiary. In
the event that the Optionee ceases to be employed by the
Company or a Subsidiary, any Options held by such Option-
ee may be exercised following such termination, as fol-
lows:
(i) if the Optionee's termination of
employment is due to his or her death or Disability, the
Option (to the extent exercisable at the time of the
Optionee's termination of employment) shall be exercis-
able for a period of one (1) year following such termina-
tion of employment, and shall thereafter terminate;
(ii) if the Optionee's termination
of employment is by the Company or a Subsidiary for
Cause, the Option shall immediately terminate on the date
of Optionee's termination of employment; and
(iii) if the Optionee's termination
of employment is for any other reason (including an
Optionee's ceasing to be employed by a Subsidiary as a
result of the sale of such Subsidiary or an interest in
such Subsidiary), the Option (to the extent exercisable
at the time of the Optionee's termination of employment)
shall be exercisable for a period of ninety (90) days
following such termination of employment), and shall
thereafter terminate.
(b) For purposes of this Option Agree-
ment, the Optionee's employment will have terminated by
reason of "Disability" if, due to illness or injury, the
Optionee is unable to engage in any gainful occupation
for which he or she is suited by education, training or
experience, which condition continues for at least six
(6) months.
(c) For purposes of this Option Agree-
ment, "Cause" shall mean (i) the willful failure or
refusal by the Optionee to substantially perform his or
her duties or responsibilities which continues after
being brought to the attention of the Optionee (other
than any such failure resulting from the Optionee's
incapacity due to Disability) or (ii) the willful engag-
ing by the Optionee in misconduct which is materially
injurious to the Company or a Subsidiary, monetarily or
otherwise, or the Optionee's commission of any fraud,
misappropriation, embezzlement or similar act, which is
brought to the attention of the Optionee in writing not
more than thirty (30) days from the date of its discovery
by the Company, a Subsidiary, or the Board.
4. Exercise of Option.
(a) The Option shall be exercised in the
following manner: the Optionee, or the person or persons
having the right to exercise the Option upon the death or
Disability of the Optionee, shall deliver to the Company
written notice, in substantially the form of the notice
attached hereto, specifying the number of Option Shares
which the Optionee elects to purchase. The Optionee must
include with the notice full payment for any Option
Shares being purchased under an Option.
(b) Payment of the Option Price for any
Option Shares being purchased must be made in cash, by
certified or cashier's check, or by delivering to the
Company shares of Stock which the Optionee already owns
or by a cashless exercise procedure approved by the
Committee. If the Optionee pays by delivering shares of
Stock, the Optionee must include with the notice of
exercise the certificates for such shares of Stock either
duly endorsed for transfer or accompanied by an appropri-
ately executed stock power in favor of the Company. The
shares of Stock delivered by the Optionee will be valued
by the Company at its Fair Market Value on the day pre-
ceding the date of exercise of the Option and, if the
value of the shares of Stock delivered by the Optionee
exceeds the amount required to be paid pursuant to this
Section 4, the Company will provide to the Optionee, as
soon as practicable, cash or a check in an amount equal
to the value, as so determined, of any fractional portion
of a share of Stock, and will issue a certificate to the
Optionee for any whole share(s) of Stock, exceeding the
number of shares of Stock required to pay the Option
Price.
(c) Not less than 100 shares of Stock may
be purchased at any time upon the exercise of an Option,
unless the number of shares of Stock so purchased consti-
tutes the total number of shares of Stock then purchas-
able under the Option. The Option may be exercised only
to purchase whole shares of Stock, and in no case may a
fractional share of Stock be purchased. The right of the
Optionee to purchase shares of Stock with respect to
which the Option has become exercisable may be exercised,
in whole or in part at any time or from time to time,
prior to the Expiration Date.
(d) The Company may require an Optionee
to pay, prior to the delivery of any Option Shares to
which such Optionee shall be entitled upon exercise of an
Option, an amount equal to the federal, state and local
income taxes and other amounts required by law to be
withheld by the Company with respect to any Option.
Alternatively, the Optionee may authorize the Company to
withhold from the number of Option Shares he or she would
otherwise receive upon exercise of an Option, that number
of Option Shares having a Fair Market Value equal to the
amount of such required tax.
5. Miscellaneous.
(a) Entire Agreement. This Option Agree-
ment and the Plan contain all of the understandings and
agreements between the Company and the Optionee concern-
ing this Option and supersedes all earlier negotiations
and understanding, written or oral, between the parties
with respect thereto. The Company and the Optionee have
made no promises, agreements, conditions or understand-
ing, either orally or in writing, that are not included
in this Option Agreement or the Plan.
(b) Captions. The captions and section
numbers appearing in this Option Agreement are inserted
only as a matter of convenience. They do not define,
limit, construe or describe the scope or intent of the
provisions of this Option Agreement.
(c) Counterparts. This Option Agreement
may be executed in counterparts, each of which when
signed by the Company of the Optionee will be deemed an
original and all of which together will be deemed the
same Agreement.
(d) Notices. Any notice or communication
having to do with this Option Agreement must be given by
personal delivery or by certified mail, return receipt
requested, addressed, if to the Company, to the attention
of the Secretary of the Company at the principal office
of the Company and, if to the Optionee, to the Optionee's
last known address contained in the personnel records of
the Company.
(e) Succession and Transfer. Each and
all of the provisions of this Option Agreement are bind-
ing upon and inure to the benefit of the Company and the
Optionee and their respective estate, successors and
assigns; provided, however, that the Options granted
hereunder shall not be transferable by the holder thereof
other than by will or by the laws of descent and distri-
bution and may be exercised, during the lifetime of the
Optionee, only by the Optionee or by his or her guardian
or legal representative.
(f) Amendments. Subject to the provi-
sions of the Plan, this Option Agreement may be amended
or modified at any time by an instrument in writing
signed by the parties hereto.
(g) Governing Law. This Option Agreement
and the rights of all persons claiming hereunder will be
construed and determined in accordance with the laws of
the State of New York without giving effect to the choice
of law principles thereof.
THIS OPTION AGREEMENT IS MADE UNDER AND SUBJECT TO THE
PROVISIONS OF THE PLAN, AND ALL OF THE PROVISIONS OF THE
PLAN ARE HEREBY INCORPORATED HEREIN AS PROVISIONS OF
THIS AGREEMENT. IF THERE IS A CONFLICT BETWEEN THE
PROVISIONS OF THIS OPTION AGREEMENT AND THE PROVISIONS OF
THE PLAN, THE PROVISIONS OF THE PLAN WILL GOVERN. BY
SIGNING THIS AGREEMENT, THE OPTIONEE CONFIRMS THAT HE OR
SHE HAS RECEIVED A COPY OF THE PLAN AND HAS HAD AN OPPOR-
TUNITY TO REVIEW THE CONTENTS THEREOF.
IN WITNESS WHEREOF, the parties have executed this
Agreement on the date and year first above written.
MOVIEFONE, INC.
By:
Name: Adam H. Slutsky
Title: Chief Financial Officer
______________________________
Name:
Exhibit 5
Skadden, Arps, Slate Meagher & Flom
919 Third Avenue
New York, New York 10022
July 25, 1996
MovieFone, Inc.
Four World Trade Center
New York, New York 10048
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to MovieFone,
Inc., a Delaware corporation (the "Company"), in
connection with the preparation of a registration
statement on Form S-8 filed with the SEC on July 25, 1996
(the "Registration Statement"), relating to the issuance
and sale of up to 900,000 shares (the "Shares") of the
Class A common stock, par value $0.01 per share (the
"Common Stock"), of the Company issuable upon exercise of
options that have been or may be granted under the
Company's 1994 Stock Option Plan (the "Stock Option
Plan").
This opinion is being furnished in accordance
with the requirements of Item 601(b)(5) of Regulation S-K
under the Securities Act of 1933 (the "Act").
We have examined originals or copies, certified
or otherwise identified to our satisfaction, of (a) the
Registration Statement, (b) the Stock Option Plan
(including Amendment No. 1 thereto, which became
effective on October 12, 1995), (c) a specimen
certificate evidencing the Common Stock, (d) the
Certificate of Incorporation of the Company, as amended
to date, (e) the By-Laws of the Company, as amended to
date, (f) certain resolutions of the Board of Directors
of the Company relating to, among other things, the Stock
Option Plan and (g) such other documents as we have
deemed necessary or appropriate as a basis for the
opinions set forth below.
In our examination, we have assumed the legal
capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents
of all documents submitted to us as certified, conformed
or photostatic copies and the authenticity of the
originals of such latter documents. In making our
examination of documents executed or to be executed by
parties other than the Company, we have assumed that such
parties had the power, corporate or other, to enter into
and perform all obligations thereunder and have also
assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such
parties of such documents and the validity and binding
effect thereof on such parties. As to any facts material
to the opinions expressed herein which we did not
independently establish or verify, we have relied upon
certificates, statements or representations of officers
and other representatives of the Company, public
officials and others. In rendering the opinion set forth
below, we have assumed that (i) the certificates
representing the Shares will be manually signed by one of
the authorized officers of the transfer agent and
registrar for the Common Stock and registered by such
transfer agent and registrar and will conform to the
specimen thereof examined by us and (ii) prior to the
issuance of any Shares, the Company and the relevant
optionee will have duly entered into stock option
agreements ("Option Agreements") in accordance with the
terms of the Stock Option Plan.
Members of our firm are admitted to the Bar of
the State of Delaware, and we do not express any opinion
as to the laws of any other jurisdiction.
Based upon and subject to the foregoing, we are
of the opinion that the Shares have been duly and validly
authorized for issuance and, when delivered and paid for
in accordance with the terms of the Option Agreements,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion
with the Commission as Exhibit 5 to the Registration
Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose
consent is required under Section 7 of the Act or the
rules or regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Skadden, Arps, Slate,
Meagher & Flom
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of MovieFone, Inc. on Form S-8 of our report dated March
11, 1996, appearing in the Annual Report on Form 10-K of MovieFone,
Inc. for the year ended December 31, 1995 and to the reference to
us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
July 23, 1996
