As filed with the Securities and Exchange Commission on June 7, 1996
Registration No.
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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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YES! ENTERTAINMENT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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CALIFORNIA 94-165290
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
3875 HOPYARD ROAD, SUITE 375, PLEASANTON, CALIFORNIA 94588
(ADDRESS OF REGISTRANTS'S PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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1992 STOCK OPTION PLAN
1995 STOCK OPTION PLAN
1995 DIRECTOR OPTION PLAN
(FULL TITLE OF THE PLANS)
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BRUCE D. BOWER
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
YES! ENTERTAINMENT CORPORATION
3875 HOPYARD ROAD, SUITE 375
PLEASANTON, CALIFORNIA 94588
(510) 847-9444
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
DEBRA B. ROSLER, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE FEE
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Common Stock, no par value
- -Reserved under 1992 Stock Option Plan, as amended 463,978 $3.80/13.19 $1,869,436(1) $ 645
- -Reserved under 1995 Stock Option Plan 1,000,000 $6.77/13.19 $8,021,707(2) $2,766
- -Reserved under 1995 Director Stock Option Plan 120,000 $5.25/13.19 $1,106,400(3) $ 382
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TOTAL 1,583,978 $10,997,543 $3,793
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(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of (i) the weighted average
exercise price of $3.80 per share for outstanding options to purchase a
total of 452,649 shares of Common Stock and (ii) $13.19 per share (the
average of the bid and ask reported prices as of June 3, 1996) for 11,329
shares of Common Stock reserved for issuance thereunder.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of (i) the weighted average
exercise price of $6.77 per share for outstanding options to purchase a
total of 805,030 shares of Common Stock and (ii) $13.19 per share (the
average of the bid and ask reported prices as of June 3, 1996) for 194,970
shares of Common Stock reserved for issuance thereunder.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of (i) the weighted average
exercise price of $5.25 per share for outstanding options to purchase a
total of 60,000 shares of Common Stock and (ii) $13.19 per share (the
average of the bid and ask reported prices as of June 3, 1996) for 60,000
shares of Common Stock reserved for issuance thereunder.
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION.
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Omitted pursuant to the instructions and provisions of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
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Omitted pursuant to the instructions and provisions of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
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The following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") by the Registrant are
incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995.
2. The Registrant's Report on Form 10-Q for the quarterly period
ended March 31, 1996.
3. The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated April 20,
1995, filed pursuant to Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") which was declared
effective on June 7, 1995.
All documents subsequently filed by Registrant 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 securities offered hereunder have been sold
or which deregisters all securities then remaining unsold under this
registration statement, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
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Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317 of the California Corporations Code authorizes a
corporation to indemnify its directors, officers, employees or other agents in
terms sufficiently broad to permit indemnification (including reimbursement for
expenses incurred) under certain circumstances for labilities arising under the
Securities Act of 1933, as amended (the "1933 Act"). The Registrant's Articles
of Incorporation, as amended, and Bylaws, as amended, provided for
indemnification of its directors, officers, employees and other agents to the
maximum extent permitted by the California Corporations Code. In addition, the
Registrant has entered into Indemnification Agreements with its directors and
several officers. The Amended and Restated Registration Rights Agreement dated
as of June 17, 1994 entered into by the Registrant and certain holders (the
"Holders") of its Common and Preferred Stock, provides for cross-indemnification
of the Holders and of the Registrant, its officers and directors for certain
liabilities arising under the 1993 Act or otherwise.
The indemnification provision in the Bylaws and the indemnification
agreements entered into between the Registrant and its directors and executive
officers, may be sufficiently broad to permit indemnification of the Registrant,
its officers and directors for liabilities arising under the 1933 Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. INDEX TO EXHIBITS.
Exhibit Description of Document
Number
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4.1(1) Amended and Restated Articles of Incorporation of Registrant
4.2(2) Bylaws of Registrant
4.3 1992 Stock Option Plan, as amended
4.4 1995 Stock Option Plan
4.5 1995 Director Option Plan
5.1 Opinion of Counsel as to legality of securities being registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (included on signature pages)
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(1) Incorporated by reference to Exhibit 3.1 of the Registrants' Registration
Statement on Form S-1 (File No. 33-91408).
(2) Incorporated by reference to Exhibit 3.2 of the Registrants' Registration
Statement on Form S-1 (File No. 33-91408).
-2-
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 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 periodic reports filed by the Registrant
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, 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.
(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 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 of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Pleasanton, State of California, on this 7th day
of June 1996.
YES! ENTERTAINMENT CORPORATION
By: /s/ Bruce D. Bower
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Bruce D. Bower
Executive Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints, jointly and severally, Donald D. Kingsborough,
Bruce D. Bower and Sol Kershner and each one of them, his true and lawful
attorney-in-fact and agents, each with full power of substitution, 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
on Form S-8, and to file the same, with all exhibits thereto and all 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 fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that each of said attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, may lawfully do or cause to be done or by virtue
hereof.
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 date indicated.
SIGNATURE TITLE DATE
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/s/ Donald D. Kingsborough Chairman of the Board and June 7, 1996
- ----------------------------- Chief Executive Officer
DONALD D. KINGSBOROUGH (Principal Executive Officer)
/s/ Sol Kershner Chief Financial Officer June 7, 1996
- ----------------------------- (Principal Financial and
SOL KERSHNER Accounting Officer)
/s/ David C. Costine Director June 7, 1996
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DAVID C. COSTINE
/s/ Esmond T. Goei Director June 7, 1996
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ESMOND T. GOEI
/s/ Michael J. Marocco Director June 7, 1996
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MICHAEL J. MAROCCO
/s/ Gary L. Nemetz Director June 7, 1996
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GARY L. NEMETZ
Index to Exhibits
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Exhibit Description of Document Sequentially
Number Numbered
Page
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4.1(1) Amended and Restated Articles of Incorporation of Registrant
4.2(2) Bylaws of Registrant
4.3 1992 Stock Option Plan, as amended
4.4 1995 Stock Option Plan
4.5 1995 Director Option Plan
5.1 Opinion of Counsel as to legality of securities being registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (included on signature pages)
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(1) Incorporated by reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-1 (File No. 33-91408).
(2) Incorporated by reference to Exhibit 3.2 of the Registrant's Registration
Statement on Form S-1 (File No. 33-91408).