As filed with the Securities and Exchange Commission on December 12, 2001
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIRST LOOK MEDIA, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-3751702
State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization Identification Number)
8800 SUNSET BOULEVARD, 3RD FLOOR
LOS ANGELES, CALIFORNIA 90069
(Address of Principal Executive Offices)
2000 PERFORMANCE EQUITY PLAN
AND
AMENDED AND RESTATED 1996 SPECIAL STOCK OPTION PLAN AND AGREEMENT
AND
OTHER BENEFIT PLANS
(Full Title of the Plans)
WILLIAM F. LISCHAK
Chief Operating Officer, Chief Financial Officer and Secretary
First Look Media, Inc.
8800 Sunset Boulevard, 3rd Floor
Los Angeles, California 90069
(310) 855-1199
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
with a copy to:
DAVID ALAN MILLER, ESQ.
Graubard Miller
600 Third Avenue
New York, New York 10016-2097
Telephone: (212) 818-8800
CALCULATION OF REGISTRATION FEE
============================================|================|===================|===================|===================
| | Proposed maximum | Proposed maximum |
Title of Securities | Amount to be | Offering price | Aggregate | Amount of
to be registered | Registered(1) | per share | Offering price | Registration fee
============================================|================|===================|===================|===================
Common stock issuable upon exercise of | 950,000 | $1.01(2) | $959,500 | $229.32
options that may be granted under the 2000 | | | |
Performance Equity Plan................. | | | |
--------------------------------------------|----------------|-------------------|-------------------|-------------------
Common Stock issuable upon exercise of | | | |
options granted and outstanding under the | | | |
2000 Performance Equity Plan............ | 50,000 | $1.50(3) | $75,000 | $17.93
--------------------------------------------|----------------|-------------------|-------------------|-- -----------------
Common stock issuable upon exercise of | | | |
options granted and outstanding under the | | | |
Amended and Restated 1996 Special Stock | | | |
Option Plan and Agreement............... | 500,000 | $3.40(3) | $1,700,000 | $406.30
--------------------------------------------|----------------|-------------------|-------------------|-------------------
Common Stock issuable upon exercise of | | | |
options and other stock-based awards | | | |
granted and outstanding under other | | | |
employee benefit plans ("Other Benefit | | | |
Plans")................................. | 10,000 | $2.44(3) | $24,400 | $5.83
--------------------------------------------|----------------|-------------------|-------------------|-------------------
TOTAL $ 659.38
=========================================================================================================================
(1) Pursuant to Rule 416, there are also being registered additional shares
of common stock as may become issuable pursuant to the anti-dilution
provisions of such plan.
(2) Based on the last sale price of a share of our common stock as reported
by The Nasdaq OTC Bulletin Board on December 6, 2001 (the last date on
which a trade was reported) in accordance with Rules 457(c) and 457(h)
promulgated under the Securities Act of 1933, as amended.
(3) Represents the exercise price payable for the shares issuable upon
exercise of outstanding options granted under the 2000 Performance
Equity Plan, the Amended and Restated 1996 Special Stock Option Plan and
Agreement and the Other Benefit Plans in accordance with Rule 457(h)
promulgated under the Securities Act.
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In accordance with the provisions of Rule 462 promulgated under the
Securities Act, this registration statement will become effective upon filing
with the Securities and Exchange Commission.
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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 Part I to be contained in the Section
10(a) prospectus is omitted from this registration statement
in accordance with Rule 428 under the Securities Act 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 that we have previously filed with the SEC are
incorporated by reference in this registration statement:
o our Annual Report on Form 10-K for the fiscal year ended
December 31, 2000;
o our quarterly reports on Form 10-Q for the periods ended March
31, 2001, June 30, 2001, and September 30, 2001; and
o the description of our common stock, par value $.001 per
share, contained in our registration statement on Form 8-A
(No. 0-25308) filed with the SEC on December 21, 1994 pursuant
to Section 12(g) of the Exchange Act of 1934, including any
subsequent amendment(s) or report(s) filed for the purpose of
updating such description.
All documents subsequently filed by us 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 the securities offered have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part of
this registration statement from the respective date of filing. The information
incorporated by reference is an important part of this registration statement,
and information that we file later with the SEC will automatically update and
supersede this information.
Item 4. Description of Securities.
Our common stock is registered under Section 12(g) of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation 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, whether civil, criminal, administrative, or
investigative (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
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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, partnership,
joint venture, trust, or other enterprise, against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit, or
proceeding if such person acted in good faith and in a manner such person
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 no
reasonable cause to believe that such person's conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
conviction, or upon plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that such person did not act in good faith and in a
manner that such person 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 reasonable cause to believe that such person's conduct was
unlawful.
In the case of an action by or in the right of the corporation, Section
145 empowers a corporation 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 in
any of the capacities set forth above against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith
and in a manner that such person reasonably believed to be in and not opposed to
the best interests of the corporation, except that indemnification is not
permitted in respect of any claim, issue, or matter as to which such person is
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought
determines upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses that the Court of Chancery or such other
court deems proper.
Section 145 further provides:
o that a Delaware corporation is required to indemnify a
director, officer, employee, or agent against expenses
(including attorneys' fees) actually and reasonably incurred
by such person in connection with any action, suit, or
proceeding or in defense of any claim, issue, or matter
therein as to which such person has been successful on the
merits or otherwise;
o that indemnification provided for by Section 145 shall not be
deemed exclusive of any other rights to which the indemnified
party may be entitled;
o that indemnification provided for by Section 145 shall, unless
otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a director, officer, employee,
or agent and shall inure to the benefit of such person's
heirs, executors, and administrators; and
o that a Delaware corporation may purchase and maintain
insurance on behalf of its directors or officers against any
such liability asserted against them as directors or officers
or arising out of their status as directors or officers
whether or not the corporation would have the power to
indemnify them against liability under Section 145.
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A Delaware corporation may provide indemnification only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct. Such determination is to be made:
o by the board of directors by a majority vote of a quorum
consisting of directors who were not party to such action,
suit, or proceeding;
o if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion; or
o by the stockholders.
Article TENTH of our Restated Certificate of Incorporation and Article
V of our Bylaws provide for indemnification of our directors, officers,
employees or agents to the fullest extent permitted by law, as now in effect or
later amended. Article V of our Bylaws provides that expenses incurred by any
such person in connection with a proceeding shall be paid by us in advance of a
final disposition upon receipt of an undertaking by or on behalf of such person
to repay the advanced amounts if it is ultimately determined that such person
was not entitled to be indemnified by us.
Article NINTH of our Restated Certificate of Incorporation eliminates
the personal liability of our directors to the fullest extent permitted by the
provisions of Section 102 of the Delaware General Corporation Law, as the same
may be amended and supplemented.
Additionally, we have entered into indemnification agreements with all
of our directors, pursuant to which we have agreed to indemnify each of them,
including in circumstances in which indemnification is otherwise discretionary
under Delaware law. These agreements constitute binding agreements between us
and each director which, among other things, prevents us from modifying our
indemnification policy in a way that is adverse to any director.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
Exhibit No. Description
----------- -----------
4.1 2000 Performance Equity Plan (filed herewith)
4.2 Amended and Restated 1996 Special Stock Option Plan
and Agreement (incorporated by reference to Exhibit
10.37 to the Company's Current Report on Form 8-K/A,
filed with the SEC on June 29, 2000)
4.3 Stock Option Agreement dated July 11, 1999 between
the Company and Gary Stein (filed herewith)
5.1 Opinion of Graubard Miller (filed herewith)
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith)
23.2 Consent of Graubard Miller (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
Item 9. Undertakings.
(a) 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 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.
(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.
(b) 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.
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(c) 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 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 registration of 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.
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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 11th day of
December, 2001.
FIRST LOOK MEDIA, INC.
By: /s/ William F. Lischak
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William F. Lischak, Chief Operating
Officer, Chief Financial Officer
and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William F. Lischak his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments to this registration statement, including post-effective
amendments, and to file the same, with all exhibits thereto, and all 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
premises, as fully to all intents and purposes as he might or could do in
person, and hereby ratifies and confirms all that said attorney-in-fact and
agent 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, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Christopher J. Cooney Co-Chairman of the Board December 11, 2001
-------------------------- and Chief Executive Officer
Christopher J. Cooney (Principal Executive Officer)
/s/ Robert B. Little Co-Chairman of the Board December 11, 2001
-------------------------- and President
Robert B. Little
/s/ William F. Lischak Chief Operating Officer, December 11, 2001
-------------------------- Chief Financial Officer,
William F. Lischak Secretary and Director
(Principal Accounting Officer)
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/s/ Stephen K. Bannon Director December 11, 2001
--------------------------
Stephen K. Bannon
/s/ Nicholas Bavaro Director December 11, 2001
--------------------------
Nicholas Bavaro
Director December 11, 2001
--------------------------
Jeffrey Cooney
Director December 11, 2001
--------------------------
Joseph Linehan
Director December 11, 2001
--------------------------
Barry R. Minsky
/s/ Scot K. Vorse Director December 11, 2001
--------------------------
Scot K. Vorse
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EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4.1 2000 Performance Equity Plan (filed herewith)
4.2 Amended and Restated 1996 Special Stock Option Plan
and Agreement (incorporated by reference to Exhibit
10.37 to the Company's Current Report on Form 8-K/A,
filed with the SEC on June 29, 2000)
4.3 Stock Option Agreement dated July 11, 1999 between
the Company and Gary Stein (filed herewith)
5.1 Opinion of Graubard Miller (filed herewith)
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith)
23.2 Consent of Graubard Miller (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)