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As filed with the Securities and Exchange Commission on May 28, 1996
Reg. No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________
MOVIE GALLERY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 63-1120122
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
739 W. MAIN STREET
DOTHAN, ALABAMA 36301
(Address of principal executive offices) (Zip Code)
_________________
1994 STOCK PLAN
(Full title of the plan)
_________________
JOE THOMAS MALUGEN
MOVIE GALLERY, INC.
739 W. MAIN STREET
DOTHAN, ALABAMA 36301
(Name and address of agent for service)
(334) 677-2108
(Telephone number, including area code, of agent for service)
Copy to:
JAMES C. LOCKWOOD, ESQ.
TROY & GOULD PROFESSIONAL CORPORATION
1801 CENTURY PARK EAST, SUITE 1600
LOS ANGELES, CALIFORNIA 90067
(310) 553-4441
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CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Maximum Proposed Maximum
Amount To Be Offering Price Aggregate Offering Amount of
Title of Securities To Be Registered Registered/(1)/ Per Share/(2)/ Price/(2)/ Registration Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $.001 par value........... 1,000,000 $32.25 $32,250,000 $11,121
====================================================================================================================
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(1) In accordance with Rule 416 of the General Rules and Regulations under the
Securities Act of 1933 (the "General Rules"), there also are being
registered such indeterminate number of additional shares of Common Stock
as may become issuable pursuant to anti-dilution provisions of the plans.
(2) Estimated pursuant to Rule 457 of the General Rules, solely for the purpose
of computing the registration fee, based on the last reported sales price
of the Common Stock as reported on the Nasdaq National Market on May 21,
1996.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Items 1 and 2 of Part I to be contained in the
Section 10(a) prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933 and the Note
to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Movie Gallery, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference herein:
(i) the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, Form 10-K/A and Form 10-K/A-1 amending the Annual Report; and
(ii) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996; and
(iii) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (Reg. No. 0-24548) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment or report subsequently filed by the Company for the purpose of
updating that description.
In addition, any document 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 hereof, but prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all shares of the Company's
Common Stock registered hereunder have been sold or that deregisters all such
shares of Common Stock then remaining unsold, will be deemed to be
incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock registered hereby is a class of securities registered
under Section 12(g) of the Exchange Act.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
The consolidated financial statements of Movie Gallery, Inc. at
December 31, 1994 and 1995, and for each of the three years in the period ended
December 31, 1995, included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1995 have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such reports given upon the authority of
such firm as experts in accounting and auditing.
Counsel for the Company, Troy & Gould Professional Corporation, 1801
Century Park East, Los Angeles, California, has rendered an opinion to the
effect that the securities offered hereby by the Company, when sold and paid
for, will be duly and validly issued, fully paid and nonassessable. Joseph F.
Troy, a member of Troy & Gould Professional Corporation, is a director of the
Company and has been granted options to purchase 60,000 shares of the Company's
Common Stock. Other attorneys at the firm hold 3,000 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation and the Bylaws of the Company provide
for the indemnification of directors and officers of the Company to the fullest
extent permitted by the General Corporation Law of the State of Delaware (the
"GCL").
Section 145 of the GCL authorizes indemnification when a person is
made a party to any proceeding by reason of the fact that such person is or was
a director, officer, employee or agent of the corporation or was serving as a
director, officer, employee or agent of another enterprise, at the request of
the corporation, and if such person acted
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in good faith and in a manner reasonably believed by him or her to be in, or
not opposed to the best interests of the corporation. With respect to any
criminal proceeding, such person must have had no reasonable cause to believe
that his or her conduct was unlawful. If it is determined that the conduct of
such person meets these standards, he or she may be indemnified for expenses
incurred and amounts paid in such proceeding if actually and reasonably
incurred by him or her in connection therewith.
If such a proceeding is brought by or on behalf of the corporation
(i.e., a derivative suit), such person may be indemnified against expenses
actually and reasonably incurred if he or she acted in good faith and in a
manner reasonably believed by him or her to be in, or not opposed to, the best
interests of the corporation. There can be no indemnification with respect to
any matter as to which such person is adjudged to be liable to the corporation;
however, a court may, even in such case, allow such indemnification to such
person for such expenses as the court deems proper. Where such person is
successful in any such proceeding, he or she is entitled to be indemnified
against expenses actually and reasonably incurred by him or her. In all other
cases, indemnification is made by the corporation upon determination by it that
indemnification of such person is proper because such person has met the
applicable standard of conduct.
The Company has entered into separate but identical indemnity
agreements (the "Indemnity Agreements") with each director and executive officer
of the Company (the "Indemnitees"). The Indemnity Agreements provide that the
Company will indemnify each Indemnitee to the fullest extent authorized or
permitted by law against payment of and liability for any and all expenses
actually and reasonably incurred by the Indemnitee, including, but not limited
to, judgments, fines, settlements and charges, costs, expenses of investigation
and expenses of defense of legal actions, suits, proceedings payable by reason
of the fact that the Indemnitee is or was a director and/or officer of the
Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, in connection with the defense or settlement of such
proceedings, provided it is determined that the Indemnitee acted in good faith
and in a manner that he reasonably believed to be in or not opposed to the best
interests of the Company and, in the case of a criminal proceeding, had no
reasonable cause to believe that his conduct was unlawful. The Indemnity
Agreements also provide that all costs and expenses incurred by the Indemnitee
in defending or investigating such claim shall be paid by the Company (and shall
be paid by the Company in advance of the final disposition thereof at the
written request of the Indemnitee if the Indemnitee undertakes to repay the
Company for any costs or expenses so advanced if it shall ultimately be
determined by a court of competent jurisdiction in a final, nonappealable
adjudication that he is not entitled to indemnification under the Indemnity
Agreement) unless the Company, independent legal counsel or the stockholders of
the Company determine that: (i) the Indemnitee did not act in good faith and in
a manner that he reasonably believed to be in or not opposed to the best
interests of the Company; (ii) in the case of any criminal action or proceeding,
the Indemnitee had reasonable cause to believe his conduct was unlawful; or
(iii) the Indemnitee intentionally breached his duty to the Company or its
stockholders.
ITEM 8. EXHIBITS
The following exhibits included herewith or incorporated herein by
reference are made part of this Registration Statement:
4.1 Specimen Common Stock certificate (filed with the Commission on
August 1, 1994 as Exhibit 4.1 to the Company's Registration
Statement on Form S-1 (Reg. No. 33-80120) and incorporated herein
by reference).
5 Opinion of Troy & Gould Professional Corporation regarding the
legality of the securities registered hereunder.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Troy & Gould Professional Corporation (contained in
Exhibit 5).
24 Power of Attorney (contained in Part II).
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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;
and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement:
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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
Exchange Act (and 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.
Insofar as indemnification for liabilities arising 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 the
Securities Act of 1933 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
Securities Act of 1933 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 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 Dothan, State of Alabama, on May 22,
1996.
MOVIE GALLERY, INC.
By: s/ JOE THOMAS MALUGEN
-----------------------------------
Joe Thomas Malugen, Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joe T. Malugen and J. Steven Roy, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place, and stead,
in any and all capacities, to sign any and 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 attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or 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 on
behalf of the registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
---------- ----- ----
<S> <C> <C>
s/JOE THOMAS MALUGEN Chairman of the Board of May 22, 1996
- ------------------------- Directors and Chief Executive
Joe Thomas Malugen Officer (Principal Executive
Officer)
s/J. STEVEN ROY Senior Vice President and May 22, 1996
- ------------------------- Chief Financial Officer
J. Steven Roy (Principal Financial and
Accounting Officer)
s/WILLIAM B. SNOW Vice Chairman of the Board May 22, 1996
- -------------------------
William B. Snow
s/H. HARRISON PARRISH President and Director May 22, 1996
- -------------------------
H. Harrison Parrish
Director May __, 1996
- -------------------------
Sanford Sigoloff
Director May __, 1996
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Phillip B. Smith
May 22, 1996
s/JOSEPH F. TROY Director
- -------------------------
Joseph F. Troy
</TABLE>
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EXHIBIT INDEX
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Exhibit Number Page
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<S> <C> <C>
4.1 Specimen Common Stock certificate (filed with the Commission on
August 1, 1994 as Exhibit 4.1 to the Company's Registration
Statement on Form S-1 (Reg. No. 33-80120) and incorporated herein
by reference).
5 Opinion of Troy & Gould Professional Corporation regarding the
legality of the securities registered hereunder.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Troy & Gould Professional Corporation (contained in
Exhibit 5).
24 Power of Attorney (contained in Part II).
</TABLE>
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EXHIBIT 5
May 23, 1996
MOV1.2
Movie Gallery, Inc.
739 W. Main Street
Dothan, Alabama 36301
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") of Movie Gallery, Inc. (the "Company"), and the
exhibits filed in connection therewith, which you are filing with the Securities
and Exchange Commission (the "SEC") in connection with the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of up to
1,000,000 shares of the Company's Common Stock, par value $0.001 per share
("Common Stock") issuable under the Company's 1994 Stock Plan (the "Plan").
For purposes of this opinion, we have examined such matters of law and
originals, or copies certified or otherwise identified to our satisfaction, of
the Plan and of such documents, corporate records and other instruments relating
to the adoption and implementation of the Plan as we have deemed necessary. In
our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as certified, photostatic or
conformed copies, and the authenticity of originals of all such latter
documents. We have also assumed the due execution and delivery of all documents
where due execution and delivery are prerequisites to the effectiveness thereof.
We have relied upon certificates of public officials and certificates of
officers of the Company for the accuracy of material factual matters contained
therein which were not independently established.
Based on the foregoing examination, we are of the opinion that the shares
of Common Stock issuable upon exercise of stock options granted pursuant to the
Plan are duly authorized and, when issued and paid for in accordance with the
Plan, will be validly issued, fully paid and nonassessable.
We consent to the use of our name under Part II, Item 5 of the Registration
Statement, and to the filing of this opinion as an exhibit to the Registration
Statement. By giving you this opinion and consent, we do not admit that we are
experts with respect to any part of the Registration Statement or Prospectus
within the meaning of the term "expert" as used in Section 11 of the Securities
Act of 1933, as amended, or the rules and regulations promulgated thereunder,
nor do we admit that we are in the category of persons whose consent is required
under Section 7 of said Act.
Very truly yours,
s/ Troy & Gould
Professional Corporation
TROY & GOULD
Professional Corporation
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Interest of
Named Experts and Counsel" in the Registration Statement (Form S-8 No. 333-
_________________) pertaining to the registration of 1,000,000 shares of common
stock of Movie Gallery, Inc. for issuance upon exercise of stock options granted
and to be granted under its 1994 Stock Plan, and to the incorporation by
reference therein of our report dated February 21, 1996, with respect to the
consolidated financial statements of Movie Gallery, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Birmingham, Alabama
May 23, 1996
