sv8
As
filed with the Securities and Exchange Commission on April 20, 2009
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Ascent Media Corporation
(Exact Name of Registrant as Specified in Its Charter)
12300 Liberty Blvd.
Englewood, CO 80112
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Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
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(720) 875-5622
(Address of Principal Executive Offices and Zip
Code)
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26-2735737
(I.R.S. Employer
Identification No.) |
Stock Options Agreement, Dated March 30, 2009
(Full title of plan)
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Copy to: |
William E. Niles
Executive Vice President, General Counsel and Secretary
Ascent Media Corporation
520 Broadway, 5th Floor
Santa Monica, California 90401
(310) 434-7000
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Marc A. Leaf
Renee L. Wilm
Baker Botts L.L.P.
30 Rockefeller Plaza
New York, New York 10112
(212) 408-2500 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, or a smaller reporting company.
See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer o |
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Accelerated filer o |
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Non-accelerated filer þ
(Do not check if a smaller reporting company) |
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Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Maximum |
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Maximum |
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Offering |
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Aggregate |
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Amount of |
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Title of Each Class of Securities to be |
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Amount to be |
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Price per |
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Offering Price |
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Registration |
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Registered |
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Registered (1) |
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Share |
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(3) |
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Fee (4) |
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Series A Common
Stock, par value
$.01 per share |
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104,837 |
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(2) |
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$2,650,279.36 |
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$147.89 |
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Series B Common
Stock, par value
$.01 per share |
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76,210 |
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(1) |
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The number of shares of each series of common stock, par value $.01 per share (together, the
Common Stock), stated above consists of the aggregate number of shares of each series of
Common Stock expected to be issued pursuant to the Stock Options Agreement, dated as of March
30, 2009 (the Agreement). The number of shares of Series A common stock, par value $.01 per
share (Series A Common Stock), listed above includes 93,115 shares issuable upon exercise of
an option to acquire 76,210 shares of Series B common stock, par value $.01 per share (Series
B Common Stock), which may instead be exercised for 93,115 shares of Series A Common Stock at the
election of the holder. In addition, pursuant to Rule 416 under the Securities Act of 1933,
as amended (the Securities Act), this Registration Statement covers, in addition to the
number of shares stated above, an indeterminate number of shares which
may be issued pursuant to the Agreement after the operation of certain anti-dilution and other
provisions referred to and contained therein. |
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(2) |
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Calculated based on the average of the high and low prices reported for the Series A Common
Stock on the Nasdaq Global Market on April 16, 2009 in accordance with Rule 457(h) under the
Securities Act. The Series B Common Stock is not traded on the Nasdaq Global Market and is
convertible into an equal number of shares of Series A Common Stock at the election of the
holder. |
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(3) |
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Based upon the Proposed Maximum Offering Price Per Share multiplied by the number of shares of
Series A Common Stock being registered. No separate aggregate offering price has been attributed
to the shares of Series B Common Stock being registered because those shares have already been
included in the number of shares of Series A Common Stock being registered. See note (1) above. |
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(4) |
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Calculated pursuant to Rule 457(c). |
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the employee benefit plan information required by
Item 1 of Part I of this Form and the statement of availability of registrant information and other
information required by Item 2 of Part I of this Form will be sent or given to the participant as
specified by Rule 428 under the Securities Act. In accordance with Rule 428 under the Securities
Act and the requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the Commission) either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities
Act. Ascent Media Corporation (the Company) will maintain a file of such documents in
accordance with the provisions of Rule 428 under the Securities Act. Upon request, the Company
will furnish to the Commission or its staff a copy or copies of all the documents included in such
file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed with the Commission by the Company pursuant to the
Securities Exchange Act of 1934, as amended (the Exchange Act), are incorporated herein
by reference.
(i) The Companys Annual Report on Form 10-K for the year ended December 31, 2008, filed on
March 31, 2009;
(ii) The Companys Current Reports on Form 8-K: Item 5.02 filed on February 13, 2009 and Item 5.02 filed on April 15, 2009; and
(iii) The description of the Companys Series A common stock, par value $.01 per share, and
the Companys Series B common stock, par value $.01 per share, contained in the Companys Form 8-A
filed under the Exchange Act on September 12, 2008, and any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act (other than any report or portion thereof furnished
or deemed furnished under any Current Report on Form 8-K) prior to the filing of a post-effective
amendment to this Registration Statement 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 in this Registration Statement and made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter referred to as
Incorporated Documents); provided, however, that the documents enumerated above or
subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act in each year during which the offering made by this Registration Statement is in effect prior
to the filing with the Commission of the Companys Annual Report on Form 10-K covering such year
shall not be Incorporated Documents or be incorporated by reference in this Registration Statement
or be a part hereof from and after the filing of such Annual Report on Form 10-K.
Any statement contained in this Registration Statement, in an amendment hereto or in an
Incorporated Document 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 subsequently filed
amendment to this Registration Statement or in any subsequent Incorporated Document 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 Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (DGCL) provides, generally, 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 (except
actions 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 against all 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 his or her conduct was unlawful. A corporation may similarly indemnify such person for
expenses (including attorneys fees) actually and reasonably incurred by such person in connection
with the defense or settlement of any such action or suit by or in the right of the corporation,
provided that such person 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 corporation, and, in the case of claims, issues and
matters as to which such person shall have been adjudged liable to the corporation, provided that a
court shall have determined, upon application, that, despite the adjudication of liability but in
view of all of the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
Section 102(b)(7) of the DGCL provides, generally, that the certificate of incorporation may
contain a provision eliminating or limiting the personal liability of a director to the corporation
or its shareholders for monetary damages for breach of fiduciary duty as a director, provided that
such provision may not eliminate or limit the liability of a director (i) for any breach of the
directors duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of Title 8 of the DGCL, or (iv) for any transaction from which the director derived an
improper personal benefit. No such provision may eliminate or limit the liability of a director for
any act or omission occurring prior to the date when such provision became effective.
Article V, Section E of the Amended and Restated Certificate of Incorporation of the Company
provides as follows:
1. Limitation On Liability.
To the fullest extent permitted by the DGCL as the same exists or may hereafter be amended, a
director of the Corporation shall not be liable to the Corporation or any of its stockholders for
monetary damages for breach of fiduciary duty as a director. Any repeal or modification of this
paragraph 1 shall be prospective only and shall not adversely affect any limitation, right or
protection of a director of the Corporation existing at the time of such repeal or modification.
2. Indemnification.
(a) Right to Indemnification. The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may hereafter be amended,
any person who was or is made or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or investigative (a
proceeding) by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director or officer of the Corporation or while a director or officer
of the Corporation is or was serving at the request of the Corporation as a director, officer,
employee, representative or agent of another corporation or of a partnership, joint venture,
limited liability company, trust or other enterprise, including any nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss suffered and
expenses (including attorneys fees) incurred by such person. Such right of indemnification shall
inure whether or not the claim asserted is based on matters that antedate the adoption of this
Section E. The Corporation shall be required to indemnify or make advances to a person in
connection with a proceeding (or part thereof) initiated by such person only if the proceeding (or
part thereof) was authorized by the Board of Directors of the Corporation.
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(b) Prepayment of Expenses. The Corporation shall pay the expenses (including
attorneys fees) incurred by a director or officer in defending any proceeding in advance of its
final disposition, provided, however, that the payment of expenses incurred by a director or
officer in advance of the final disposition of the proceeding shall be made only upon receipt of an
undertaking by the director or officer to repay all amounts advanced if it should be ultimately
determined that the director or officer is not entitled to be indemnified under this paragraph or
otherwise.
(c) Claims. If a claim for indemnification or payment of expenses under this paragraph
is not paid in full within 30 days after a written claim therefor has been received by the
Corporation, the claimant may file suit to recover the unpaid amount of such claim and, to the
extent permitted by law, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant was not entitled to
the requested indemnification or payment of expenses under applicable law.
(d) Non-Exclusivity of Rights. The rights conferred on any person by this paragraph
shall not be exclusive of any other rights which such person may have or hereafter acquire under
any statute, provision of this Certificate, the Bylaws, agreement, vote of stockholders or
resolution of disinterested directors or otherwise.
(e) Insurance. The Board of Directors may, to the full extent permitted by applicable
law as it presently exists, or may hereafter be amended from time to time, authorize an appropriate
officer or officers to purchase and maintain at the Corporations expense insurance: (i) to
indemnify or insure the Corporation for any obligation which it incurs as a result of the
indemnification of directors and officers under the provisions of this Section E; and (ii) to
indemnify or insure directors and officers against liability in instances in which they may not
otherwise be indemnified by the Corporation under the provisions of this Section E.
(f) Other Indemnification. The Corporations obligation, if any, to indemnify any
person who was or is serving at its request as a director, officer, employee or agent of another
corporation, partnership, joint venture, limited liability company, trust, enterprise or nonprofit
entity shall be reduced by any amount such person may collect as indemnification from such other
corporation, partnership, joint venture, limited liability company, trust, enterprise or nonprofit
entity.
3. Amendment or Repeal.
Any amendment, modification or repeal of the foregoing provisions of this Section E shall not
adversely affect any right or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such amendment, modification or repeal.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit No. |
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Description |
4.1
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Form of Amended and Restated Certificate of Incorporation of the Company (incorporated
by reference to Exhibit 3.1 to the Registration Statement on Form 10 of the Company
(File No. 000-53280), filed with the Commission on June 13, 2008 (the Form 10)). |
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4.2
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Form of Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Form 10). |
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4.3
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Specimen certificate for shares of the Companys Series A common stock, par value $.01
per share (incorporated by reference to Exhibit 4.1 to the Form 10). |
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4.4
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Specimen certificate for shares of the Companys Series B common stock, par value $.01
per share (incorporated by reference to Exhibit 4.2 to the Form 10). |
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Exhibit No. |
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Description |
4.5
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Stock Options Agreement, dated as of March 30, 2009 between the Company and Robert R.
Bennett. |
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5.1
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Opinion of Baker Botts L.L.P. as to the legality of the securities being registered. |
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23.1
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Consent of Independent Registered Public Accounting Firm. |
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23.2
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Consent of Baker Botts L.L.P. (included in Exhibit 5.1). |
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24.1
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Power of Attorney (included on page 6). |
Item 9. Undertakings.
(a) The Company 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, as
amended;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in reports
filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, as
amended, 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 Companys annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plans 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 the time shall be deemed to be the initial bona fide offering hereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the Company pursuant to the
foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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 Company 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, as amended, the Company 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 Santa Monica, State of
California, on April 20, 2009.
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ASCENT MEDIA CORPORATION |
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By: |
/s/ William E. Niles
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Name: |
William E. Niles |
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Title: |
Executive Vice President, General Counsel and
Secretary |
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints William E. Niles and Sharon L. Meymarian and each of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and re-substitution for him and in his
name, place and stead, in any and all capacities, to sign and file any or all amendments (including
post-effective amendments) to this registration statement, 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 or necessary to be done in and about the premises, to all intents and
purposes and as fully as they might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or their 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 (which persons constitute a majority of the
Board of Directors) in the capacities and on the dates indicated:
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Signature |
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Title |
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Date |
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/s/ William R. Fitzgerald
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Chairman of the Board,
Chief Executive
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April 20, 2009 |
William R. Fitzgerald |
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Officer
and Director |
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President, Chief
Operating Officer and
Director
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April 20, 2009 |
Jose A. Royo |
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Executive Vice President,
Chief Financial
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April 20, 2009 |
George C. Platisa |
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Officer
and Treasurer |
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/s/ Philip J. Holthouse
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Director
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April 20, 2009 |
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/s/ Brian C. Mulligan
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Director
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April 20, 2009 |
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Brian C. Mulligan |
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/s/ Michael J. Pohl
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Director
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April 20, 2009 |
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Michael J. Pohl |
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EXHIBIT INDEX
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Exhibit No. |
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Description |
4.1
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Form of Amended and Restated Certificate of Incorporation of the Company (incorporated
by reference to Exhibit 3.1 to the Registration Statement on Form 10 of the Company
(File No. 000-53280), filed with the Commission on June 13, 2008 (the Form 10)). |
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4.2
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Form of Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Form 10). |
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4.3
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Specimen certificate for shares of the Companys Series A common stock, par value $.01
per share (incorporated by reference to Exhibit 4.1 to the Form 10). |
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4.4
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Specimen certificate for shares of the Companys Series B common stock, par value $.01
per share (incorporated by reference to Exhibit 4.2 to the Form 10). |
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4.5
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Stock Options Agreement, dated as of March 30, 2009 between the Company and Robert R.
Bennett. |
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5.1
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Opinion of Baker Botts L.L.P. as to the legality of the securities being registered. |
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23.1
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Consent of Independent Registered Public Accounting Firm. |
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23.2
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Consent of Baker Botts L.L.P. (included in Exhibit 5.1). |
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24.1
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Power of Attorney (included on page 6). |
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