S-8 1 v211592_s8.htm

As filed with the Securities and Exchange Commission on February 15, 2011
Registration No. 333-
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
FORM S-8
REGISTRATION STATEMENT
 UNDER THE SECURITIES ACT OF 1933
  
   
POINT.360
(Exact name of registrant as specified in its charter)
 
California
  
01-0893376
(State or other jurisdiction of incorporation
  
(I.R.S. Employer Identification No.)
or organization
  
  
2777 North Ontario Street
Burbank, CA  91504
(818) 565-1444
(Address of principal executive offices)

2010 INCENTIVE PLAN OF POINT.360
(Full title of the plan)

Alan R. Steel, Chief Financial Officer
Point.360
2777 North Ontario Street
Burbank, California 91504
(818) 565-1400
(Name, address and telephone number of agent for service)

Copy to:

William D. Gould
TroyGould P.C.
1801 Century Park East, 16th Floor
Los Angeles, California 90067
Telephone: (310) 789-1338
Facsimile: (310) 201-4746


Large accelerated filer ¨
Accelerated filer ¨
Non-accelerated filer ¨
Smaller reporting company x


CALCULATION OF REGISTRATION FEE

Title of securities to
be registered
  
Amount to be
registered (1) 
  
Proposed maximum
offering price 
per share (2)
    
Proposed
maximum
aggregate offering
price (2)
    
Amount of
registration 
fee (2)
  
                       
Common Stock, no par value (3)
  
4,000,000 shares
   $ 0.86     $ 3,440,000.00     $ 399.39  

(1)
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement covers, in addition to the shares of common stock specified above, an indeterminate number of additional shares of common stock that may become issuable under the 2010 Incentive Plan of Point.360 (the "Plan") as a result of the anti-dilution adjustment provisions of the Plan.
 
(2)
The registration fee of $399.39 for the 4,000,000 shares of common stock that are being registered pursuant to this Registration Statement was calculated as follows:  The 4,000,000 shares of common stock being registered hereunder are not the subject of outstanding options, and the offering price therefore is not known. The proposed maximum offering price per share and maximum aggregate offering price were estimated in accordance with Rule 457(c) and Rule 457(h) under the Securities Act based upon a price of $0.86, which is the average of the high and low prices of the common stock reported on the Nasdaq Capital Market on February 11, 2011.
 
(3)
Associated with the common stock are rights to purchase Series A Junior Participating Preferred Stock that will not be exercisable or evidenced separately from the common stock prior to the occurrence of separate events.  No separate consideration will be received by Point.360 for the initial issuance of the rights to purchase the purchase Series A Junior Participating Preferred Stock.

 
 
 
 
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
 
 
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.
 
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
 
The following documents have been filed by Point.360 (the "Company") with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and are incorporated in this Registration Statement by reference:
 
(a) 
The Company’s Annual Report on Form 10-K filed on September 27, 2010;
 
 
(b)
The Company’s Quarterly Reports on Form 10-Q filed on November 15, 2010 and February 11, 2011, respectively;
 
 
(c)
The Company’s Current Reports on Form 8-K filed on September 21, 2010, November 12, 2010, November 22, 2010, January 14, 2011, and February 11, 2011, respectively, and
 
 
(d)
The description of the Company’s common stock, including the description of the Company’s Series A Junior Participating Preferred Stock associated with its common stock, that is contained in Company’s Registration Statement on Form 8-A filed on July 27, 2007, including any amendment or report subsequently filed by the Company for the purpose of updating such description.
 
In addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment indicating that all securities offered pursuant to this Registration Statement have been sold or deregistering all such securities then remaining unsold shall be deemed to be incorporated by reference herein and to be part hereof from the date of the filing of such documents.
 
 
Not applicable.
 
 
Not applicable.
 
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ITEM 6.   INDEMNIFICATION OF DIRECTORS AND OFFICERS.
 
Section 317(b) of the California Corporations Code (the "Corporations Code") provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any "proceeding" (as defined in Section 317(a) of the Corporations Code), other than an action by or in the right of the corporation to procure a judgment in its favor, by reason of the fact that such person is or was a director, officer, employee or other agent of the corporation  (collectively, an "Agent"), against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if the Agent acted in good faith and in a manner the Agent reasonably believed to be in the best interest of the corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful.
 
Section 317(c) of the Corporations Code provides that a corporation may indemnify any Agent who was or is a party or is threatened to be made a party to any threatened, pending or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was an Agent, against expenses actually and reasonably incurred by the Agent in connection with the defense or settlement of such action if the Agent acted in good faith and in a manner such Agent believed to be in the best interests of the corporation and its shareholders.
 
Section 317(c) further provides that no indemnification may be made thereunder for any of the following: (i) in respect of any matter as to which an Agent shall have been adjudged to be liable to the corporation, unless the court in which such proceeding is or was pending shall determine that such Agent is fairly and reasonably entitled to indemnity for expenses; (ii) of amounts paid in settling or otherwise disposing of a pending action without court approval; and (iii) of expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval.
 
Section 317(d) of the Corporations Code requires that an Agent be indemnified against expenses actually and reasonably incurred to the extent the Agent has been successful on the merits in the defense of proceedings referred to in subdivisions (b) and (c) of Section 317 of the Corporations Code.
 
Section 317(e) of the Corporations Code provides that, except as provided in Section 317(d), indemnification shall be made by the corporation only if specifically authorized and upon a determination that indemnification is proper in the circumstances because the Agent has met the applicable standard of conduct by any of the following: (i) a majority vote of a quorum consisting of directors who are not parties to the proceeding; (ii) if such a quorum of directors is not obtainable, by independent legal counsel in a written opinion; (iii) approval of the shareholders, provided that any shares owned by the Agent may not vote thereon; or (iv) the court in which such proceeding is or was pending.
 
Pursuant to Section 317(f) of the Corporations Code, the corporation may advance to an Agent expenses incurred in defending any proceeding upon receipt of an undertaking by the Agent to repay such amount if it is ultimately determined that the Agent is not entitled to be indemnified.
 
Section 317(h) of the Corporations Code provides, with certain exceptions, that no indemnification shall be made under Section 317 in such case where it would be inconsistent with a provision of the corporation's articles of incorporation, bylaws, a shareholders' resolution or any agreement which prohibits or otherwise limits indemnification, or in such case where it would be inconsistent with any condition expressly imposed by a court in approving a settlement.
 
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In addition to the indemnification described above that is expressly permitted under the Corporations Code, Article III of the Company's Articles of Incorporation and Article VI of the Company's Bylaws authorize the Company to enter into agreements with Agents that provide for indemnification in excess of that permitted under Section 317 of the Corporations Code, to the extent permissible under California law.
 
The Company has entered into indemnification agreements with its directors and officers in which the Company has agreed to indemnify its directors and officers against certain expenses, judgments, fines, settlements and other amounts that are incurred by them in connection with the defense or settlement of certain proceedings. In addition, as permitted by California law, the Company has purchased a directors' and officers' liability policy that insures its directors and officers against certain expenses, judgments, fines, settlements and other amounts that are incurred by them in connection with proceedings to which they are parties.
 
 
Not applicable.
 
 
Exhibit No.
  
Exhibit Description
     
  4.1
  
2010 Incentive Plan of Point.360.
     
  4.2
  
Form of Nonqualified Stock Option Agreement.
     
  5.1
  
Opinion of TroyGould PC with respect to the securities being registered.
     
23.1
  
Consent of TroyGould PC (contained in  Exhibit 5.1).
     
23.2
  
Consent of SingerLewak LLP.
     
24.1
  
Power of Attorney (contained on the signature page of this Registration Statement).
 
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;
 
(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement;
 
 
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     (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 hereunder which remain unsold at the termination of the offering.
 
(b)         The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company'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 this 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 Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.

 
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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 Burbank, State of California, on this 15th day of February 2011.
 
POINT.360
   
By:
/s/ Haig S. Bagerdjian
 
Haig S. Bagerdjian
 
Chairman of the Board, President and Chief Executive Officer
POWER OF ATTORNEY
 
Each person whose signature appears below hereby constitutes and appoints Haig S. Bagerdjian and Alan Steel, and each of them, his true and lawful attorneys-in-fact and agents, each with full power of substitution, to sign on his behalf, individually and in each capacity stated below, all amendments and post-effective amendments to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto and any other documents in connection therewith, with the Securities and Exchange Commission under the Securities Act of 1933, granting unto said attorneys-in-fact and agents 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 and to all intents and purposes as each might or could do in person, hereby ratifying and confirming each act that each such attorney-in-fact and agent may lawfully do or cause to be done by virtue thereof.
 
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
 
/s/ Haig S. Bagerdjian
  
Chairman of the Board of Directors, President and Chief
February 15, 2011
Haig S. Bagerdjian
  
Executive Officer
(Principal Executive Officer)
  
       
/s/ Alan R. Steel
  
Executive Vice President, Finance and Administration
February 15, 2011
Alan R. Steel
  
and Chief Financial Officer, Secretary and Treasurer
(Principal Financial and Accounting Officer)
  
       
/s/ Robert A. Baker
  
Director
February 15, 2011
Robert A. Baker
      
       
/s/Gregory J. Hutchins
  
Director
February 15, 2011
Gregory J. Hutchins
      
     
February 15, 2011
/s/Sam P. Bell
  
Director
  
Sam P. Bell
      
     
February 15, 2011
/s/ G. Samuel Oki
  
Director
  
G. Samuel Oki
      

 
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Exhibit Description
     
  4.1
  
2010 Incentive Plan of Point.360.
     
  4.2
  
Form of Nonqualified Stock Option Agreement.
     
  5.1
  
Opinion of TroyGould PC with respect to the securities being registered.
     
23.1
  
Consent of TroyGould PC (contained in Exhibit 5.1).
     
23.2
  
Consent of SingerLewak, LLP.
     
  
Power of Attorney (contained on the signature page of this Registration Statement).

 
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