-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hh+/6KniXGR1jOpan815C6Jd0JwrjsAFO0u+PBCtuC2/cljhCFa2F0DhI2sRb2o1 IikMRA8bjcIf4XPpZeIxJQ== 0000950144-05-007736.txt : 20050727 0000950144-05-007736.hdr.sgml : 20050727 20050726173535 ACCESSION NUMBER: 0000950144-05-007736 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050727 DATE AS OF CHANGE: 20050726 EFFECTIVENESS DATE: 20050727 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MOVIE GALLERY INC CENTRAL INDEX KEY: 0000925178 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-VIDEO TAPE RENTAL [7841] IRS NUMBER: 631120122 STATE OF INCORPORATION: DE FISCAL YEAR END: 0103 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-126901 FILM NUMBER: 05975171 BUSINESS ADDRESS: STREET 1: 900 WEST MAIN STREET CITY: DOTHAN STATE: AL ZIP: 36301 BUSINESS PHONE: 3346772108 MAIL ADDRESS: STREET 1: 900 WEST MAIN STREET CITY: DOTHAN STATE: AL ZIP: 36301 S-8 1 g96191sv8.htm MOVIE GALLERY, INC. MOVIE GALLERY, INC.
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As filed with the Securities and Exchange Commission on July 26, 2005.

Registration No. 333-      
 
 
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
(State or Other Jurisdiction of
Incorporation or Organization) 		  63-1120122
(I.R.S. Employer
Identification Number)
     
900 West Main Street
Dothan, Alabama 36301
(334) 677-2108
(Address of Principal Executive Offices)

MOVIE GALLERY, INC.

2003 STOCK PLAN
(Full Title of the Plan)

JOE THOMAS MALUGEN
MOVIE GALLERY, INC.
900 West Main Street
Dothan, Alabama 36301

(Name, and Address of Agent for Service)

(334) 677-2108
(Telephone Number, Including Area Code, of Agent for Service)

 

CALCULATION OF REGISTRATION FEE

     
                  Proposed     Proposed        
                  Maximum     Maximum        
  Title of Securities     Amount to     Offering Price     Aggregate     Amount of  
  to be Registered     be Registered     Per Share     Offering Price     Registration Fee  
                             
 
Common Stock, $.001 par value per share (including associated rights to purchase shares of common stock or Series A Junior Participating Preferred Stock)
      3,500,000             $25.27 (1 )     $88,445,000 (1 )       $10,410    
                             
 
(1)   Determined in accordance with Rule 457(h), the registration fee calculation is based on the average of the high and low prices of a share of the Registrant’s Common Stock reported on the Nasdaq National Market on July 25, 2005.
 
 

 

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PART I
ITEM 1. PLAN INFORMATION
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable
ITEM 8. EXHIBITS
ITEM 9. UNDERTAKINGS
SIGNATURES
EXHIBIT INDEX
EX-4.5.1 AMENDMENT TO THE MOVIE GALLERY, INC. 2003 STOCK PLAN
EX-5 OPINION OF ALSTON & BIRD LLP
EX-23.2 CONSENT OF ERNST & YOUNG LLP

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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

ITEM 1. PLAN INFORMATION

     The documents constituting Part I of this Registration Statement will be sent or given to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended.

ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.

     Upon written or oral request, Movie Gallery, Inc. (the “Company”) will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this Registration Statement. The documents are incorporated by reference in the Section 10(a) prospectus. The Company will also provide, without charge, upon written or oral request, other documents requested to be delivered to employees pursuant to Rule 428(b). Requests for the above mentioned information should be directed to Thomas D. Johnson, Senior Vice President – Corporate Finance and Business Development, at the address on the cover of this Registration Statement.

PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT

ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE

     The following documents filed by the Company (File No. 000-22356) with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference and are deemed to be a part hereof from the date of the filing of such documents:

     (1) The Company’s Annual Report on Form 10-K for the fiscal year ended January 2, 2005.

     (2) The Company’s Quarterly Report on Form 10-Q for the quarter ended April 3, 2005.

     (3) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since January 2, 2005.

     (4) The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A (Registration No. 0-24548), dated December 18, 2002, filed under Section 12 of the Exchange Act, including all amendments or reports filed for the purpose of updating such description.

 

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     (5) All other documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities that remain unsold.

     Any statement contained in a document incorporated or deemed incorporated herein by reference shall be deemed to be modified or superseded for the purpose of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated herein by reference 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

     Incorporated by reference from the Company’s Registration Statement on Form S-8 (File No. 333-109240) dated September 29, 2003.

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable.

ITEM 8. EXHIBITS

     The exhibits listed in the Exhibit Index are filed as part of this Registration Statement.

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 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 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. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of the securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the

 

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changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

          (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information 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 being 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 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 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 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 on following page)

 

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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 Dothan, State of Alabama, on July 26, 2005.

         
    MOVIE GALLERY, INC.
 
        
 
  By:   /s/ Joe Thomas Malugen 
 
       
 
         Joe Thomas Malugen
 
         President and Chief Executive Officer

     Pursuant to the requirements of the Securities Act of 1933, this registration statement ahs been signed by the following persons in the capacities and on 26 day of July, 2005.

     
/s/ Joe T. Malugen
Joe T. Malugen
  Chairman of the Board, President and Chief Executive Officer
 
    
/s/ H. Harrison Parrish
   Vice Chairman of the Board
H. Harrison Parrish
    
 
    
/s/ William B. Snow
   Director
William B. Snow
    
 
    
/s/ John J. Jump
   Director
John J. Jump
    
 
    
/s/ James C. Lockwood
   Director
James C. Lockwood
    
 
    
/s/ Timothy R. Price
   Executive Vice President and Chief Financial Officer
Timothy R. Price
    

 

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Registration No. 333-               

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

EXHIBITS FILED WITH

REGISTRATION STATEMENT

ON FORM S-8

UNDER

THE SECURITIES ACT OF 1933

 

Movie Gallery, Inc.
900 West Main Street
Dothan, Alabama 36301
(334) 677-2108

 

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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8

     
Exhibit Number   Description
4.1
  Certificate of Incorporation of the Registrant (filed as an exhibit and to the Registrant’s Registration Statement on Form S-1 (File No. 33-80120) filed on June 10, 1994 and incorporated herein by reference).
 
    
4.2
  Certificate of Amendment of Certificate of Incorporation of the Registrant (filed as Exhibit 3.1.3 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended January 5, 2003, and incorporated herein by reference).
 
    
4.3
  Amended and Restated Bylaws of the Registrant (filed as Exhibit 3.2 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended January 5, 2003, and incorporated herein by reference).
 
    
4.4
  Rights Agreement, dated December 16, 2002, between the Registrant and American Stock Transfer & Trust Company, as rights agent (filed as Exhibit 4.0 to the Registrant’s Registration Statement on Form 8-A dated December 18, 2002).
 
    
4.5
  Movie Gallery, Inc. 2003 Stock Plan, as amended (filed as Exhibit 4.4 to the Registrant’s Registration Statement on Form S-8 (File No. 333-109240) filed September 29, 2003, and incorporated herein by reference).
 
    
4.5.1
  Amendment to the Movie Gallery, Inc. 2003 Stock Plan
 
    
5
  Opinion of Alston & Bird LLP as to the legality of the securities to be issued.
 
    
23.1
  Consent of Alston & Bird LLP (contained in its opinion filed herewith as Exhibit 5 and incorporated herein by reference)
 
    
23.2
  Consent of Ernst & Young LLP Independent Registered Public Accounting Firm

 

EX-4.5.1 2 g96191exv4w5w1.txt EX-4.5.1 AMENDMENT TO THE MOVIE GALLERY, INC. 2003 STOCK PLAN Exhibit 4.5.1 SECOND AMENDMENT TO THE MOVIE GALLERY, INC. 2003 STOCK PLAN This Second Amendment to the Movie Gallery, Inc. 2003 Stock Plan is effective as of this 10th day of June, 2005, with reference to the following facts: A. The Board of Directors of Movie Gallery, Inc. (the "Company") voted to amend the Company's 2003 Stock Plan (the "2003 Plan") to reserve an additional 3,500,000 shares of Company's common stock for future grants of awards under the 2003 Plan at a duly noticed meeting of the Board of Directors held on March 17, 2005. B. The stockholders of the Company duly and validly approved the amendment to the 2003 Plan to reserve an additional 3,500,000 shares of Company's common stock for future grants of awards under the 2003 Plan at the Annual Meeting of Stockholders of the Company held on June 9, 2005 in Atlanta, Georgia. Effective as of the date hereof, the 2003 Plan is hereby amended as follows: 1. Section 6 of the Company's 2003 Plan, as amended to date, is hereby further amended and restated in its entirety as follows: "6. STOCK The stock issued to Purchasers or subject to Options granted under the Plan shall be shares of the Corporation's authorized but unissued or reacquired Common Stock. The aggregate number of Shares which may be issued under the Plan shall not exceed the sum of (i) 4,837,525 Shares plus (ii) up to 2,830,224 additional Shares representing the number of shares reserved for issuance under the Predecessor Plan pursuant to "Options" (as defined therein) outstanding under the Predecessor Plan as of the effective date referred to in Section 3 to the extent that such "Options" expire or are terminated, in whole or in part, without being exercised. The number of Shares subject to Options or other rights outstanding at any time shall not exceed the number of Shares remaining available for issuance under the Plan. In the event that any outstanding Option or other right for any reason expires or is terminated, the Shares allocable to the unexercised portion of such Option or other right may again be made subject to an Option or other right. No eligible person shall be granted Options or other rights during any 12-month period covering more than 250,000 Shares. The limitations established by this Section 6 shall be subject to adjustment in the manner provided in Section 14 hereof upon the occurrence of an event specified in that Section." MOVIE GALLERY, INC. By: /s/ S. Page Todd ------------------------------------ Name: S. Page Todd Title: Executive Vice President EX-5 3 g96191exv5.txt EX-5 OPINION OF ALSTON & BIRD LLP Exhibit 5 Opinion of Alston & Bird LLP [ALSTON&BIRD LLP LOGO] One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309 404-881-7000 Fax: 404-881-7777 www.alston.com July 26, 2005 Movie Gallery, Inc. 900 West Main Street Dothan, AL 36301 Re: Form S-8 Registration Statement -- Movie Gallery, Inc. 2003 Stock Option Plan Ladies and Gentlemen: We have acted as counsel for Movie Gallery, Inc., a Delaware corporation (the "Corporation"), in connection with the referenced Registration Statement on Form S-8 (the "Registration Statement") being filed by the Corporation with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended, and covering 3,500,000 shares of the Corporation's Common Stock, $0.001 par value ("Common Stock"), that may be issued pursuant to the grant or exercise of awards under the Movie Gallery, Inc. 2003 Stock Plan (the "2003 Plan"). This Opinion Letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K. In the capacity described above, we have considered such matters of law and of fact, including the examination of originals or copies, certified or otherwise identified to our satisfaction, of such records and documents of the Corporation, certificates of public officials and such other documents as we have deemed appropriate as a basis for the opinions hereinafter set forth. Based upon the foregoing, it is our opinion that the 3,500,000 shares of Common Stock covered by the Registration Statement and to be issued pursuant to the 2003 Plan, when issued in accordance with the terms and conditions of the 2003 Plan, will be legally and validly issued, fully paid and nonassessable. The opinions set forth herein are limited to the laws of the State of Delaware as expressed in the Delaware General Corporation Law, in reliance solely on published general compilations thereof as of the date hereof. This Opinion Letter is provided to you for your benefit and for the benefit of the Commission, in each case, solely with regard to the Registration Statement, may be relied upon by you and the Commission only in connection with the Registration Statement, and may not be relied upon by any other person or for any other purpose without our prior written consent. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement. Sincerely, ALSTON & BIRD LLP By: /s/ Paul J. Nozick ------------------------------------ A Partner EX-23.2 4 g96191exv23w2.txt EX-23.2 CONSENT OF ERNST & YOUNG LLP Exhibit 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Movie Gallery, Inc. 2003 Stock Plan of our reports dated March 14, 2005 with respect to: (i) the consolidated financial statements and related financial statement schedule of Movie Gallery, Inc.; (ii) Movie Gallery, Inc. management's assessment of the effectiveness of internal control over financial reporting; and (iii) the effectiveness of internal control over financial reporting of Movie Gallery, Inc., included in its Annual Report (Form 10-K) for the fiscal year ended January 2, 2005, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Birmingham, Alabama July 21, 2005 -----END PRIVACY-ENHANCED MESSAGE-----