As filed with the Securities and Exchange Commission on December 19, 1996
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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TV FILME, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 98-0160214
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
c/o ITSA-Intercontinental Telecomunicacoes Ltda.
SCS, Quadra 07-B1.A
Ed. Executive Tower - Sala 601
70.300-911 Brasilia-DF
Brazil
(Address of Principal Executive Offices, Including Zip Code)
1996 STOCK OPTION PLAN
(Full Title of the Plan)
ALVARO AGUIRRE
TV FILME, INC.
c/o ITSA-Intercontinental Telecomunicacoes Ltda.
SCS, Quadra 07-B1.A
Ed. Executive Tower - Sala 601
70.300-911 Brasilia-DF
Brazil
011-55-61-314-9908
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
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COPY TO:
JOHN T. CAPETTA, ESQ.
KELLEY DRYE & WARREN LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, CT 06901
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<TABLE>
CALCULATION OF REGISTRATION FEE
---------------
<CAPTION>
Title of Securities Amount to be Proposed Maximum Proposed Maximum
to be Registered Registered Offering Price Per Aggregate Offering Amount of
Share(1) Price(1) Registration Fee
- ------------------- ------------- ------------------ ------------------ -----------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per 936,432 shares $12.125 $11,354,238.00 $3,548.20
share
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) under the Securities Act of 1933, as
amended.
</TABLE>
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by TV Filme, Inc. (the "Registrant") are hereby incorporated
by reference in this Registration Statement:
(a) The Prospectus, dated July 30, 1996, contained in Amendment No. 3 to
the Registrant's Registration Statement on Form S-1 (Registration No. 333-4512),
there being no annual reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), by the
Registrant to date;
(b) The Registrant's Form 10-Q for the quarter ended June 30, 1996, as
filed with the Commission on September 12, 1996 and Form 10-Q for the quarter
ended September 30, 1996, as filed with the Commission on November 14, 1996;
(c) The description of the Registrant's common stock, $0.01 par value (the
"Common Stock"), contained in the Registration Statement on Form 8-A
(Registration No. 0-28670) filed with the Commission on July 18, 1996 under
Section 12 of the Exchange Act.
All documents and reports filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date hereof and prior
to the filing of a post-effective amendment to the Registration Statement which
indicates that the securities offered hereby have been sold, or which
deregisters all such securities remaining unsold, shall also be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof commencing on the respective dates on which such documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a Delaware corporation may 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 (a "proceeding") (other than an action by or in the right of the
corporation) by reason of the fact that he is or was director, officer, employee
or 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 him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he 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
conduct was unlawful. A Delaware corporation may indemnify any person under such
Section in connection with a proceeding by or in the right of the corporation to
procure judgment in its favor, as provided in the preceding sentence, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action, except that no
indemnification shall be made in respect thereof unless, and then only to the
extent that, a court of competent jurisdiction shall determine upon application
that such person is fairly and reasonably entitled to indemnity for such
expenses as the court shall deem proper. A Delaware corporation must indemnify
any person who was successful on the merits or otherwise in defense of any
action, suit or proceeding or in defense of any claim, issue or matter in any
proceeding, by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith. A Delaware corporation may
pay for the expenses (including attorneys' fees) incurred by an officer or
director in defending a proceeding in advance of the final disposition upon
receipt of an undertaking by or on behalf of such officer or director to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation.
Section 102(b)(7) of the DGCL, permits a corporation to provide in its
certificate of incorporation that a director shall not be personally liable to
the corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for any
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) in respect of certain unlawful dividend payments
or stock redemptions or repurchases, or (iv) for any transaction from which the
director derived an improper personal benefit. Article VII of the Registrant's
Certificate of Incorporation eliminates the liability of directors to the
fullest extent permitted by Section 102(b)(7) of the DGCL. The DGCL permits the
purchase of insurance on behalf of directors and officers against any liability
asserted against directors and officers and incurred by such persons in such
capacity, or arising out of their status as such, whether or not the corporation
would have the power to indemnify directors and officers against such liability.
The Registrant has obtained directors' and officers' reimbursements and
liability insurance which insures against liabilities that directors and
officers of the Registrant may incur in such capacities. The risks covered by
such policies do not exclude liabilities under the Securities Act. In addition,
the Registrant has entered into indemnification agreements with its officers and
directors pursuant to which it has agreed to indemnify each such officer and
director against any and all expenses, losses, claims, damages and liabilities
incurred by each such officer and director for or as a result of actions taken
or not taken while each such officer or director was acting in his or her
capacity as a director or officer of the Registrant.
At present, there is no pending litigation or other proceeding
involving a director or officer of the Registrant as to which indemnification is
being sought, nor is the Registrant aware of any threatened litigation that may
result in claims for indemnification by any officer or director.
The By-laws require the Registrant, under certain circumstances, to
indemnify any person who is, was or has agreed to become a director or officer
against expenses, liabilities and losses actually and reasonably incurred by
him. The By-laws of the Registrant also provide that expenses incurred in
connection with a civil, criminal, administrative or investigative action, suit
or proceeding, or threat thereof, shall be paid by the Registrant in advance of
the final disposition of such action, suit or proceeding upon receipt of any
undertaking by or on behalf of the director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Registrant as authorized in the By-laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 Certificate of Incorporation of the Registrant (incorporated herein by
reference to Exhibit 3.1 of the Registrant's Registration Statement on
Form S-1, File No. 333-4512, filed on May 3, 1996).
4.2 1996 Stock Option Plan (incorporated herein by reference to Exhibit
10.1 of the Registrant's Registration Statement on Form S-1, File No.
333-4512, filed on May 3, 1996).
*5 Opinion of Kelley Drye & Warren LLP regarding the legality of the
Common Stock being registered.
*23.1 Consent of Kelley Drye & Warren LLP (included in their opinion filed
as Exhibit 5).
*23.2 Consent of Ernst & Young LLP.
*24 Powers of Attorney (See Signature Page).
- -----------------------
*Filed herewith
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 (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; and
(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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission (the "Commission") by the Registrant pursuant
to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(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 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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
Registrant pursuant to the provisions of Item 6, or otherwise, the Registrant
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 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 and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 New York, State of New York, on December 18, 1996.
TV FILME, INC.
By: /S/ DOUGLAS M. KARP
-----------------------------------
Douglas M. Karp
Chairman of the Board
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Douglas M. Karp and Alvaro J. Aguirre and each of them as attorneys-in-fact,
with full power of substitution, to execute in the name and on behalf of such
person, individually and in each capacity stated below, and to file, any and all
amendments to this Registration Statement, including any and all post-effective
amendments.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on December 18, 1996.
SIGNATURE TITLE
- --------- -----
/S/ DOUGLAS M. KARP Chairman of the Board and
- -------------------------------------------- Director
Douglas M. Karp
/S/ HERMANO STUDART LINS DE ALBUQUERQUE Chief Executive Officer,
- -------------------------------------------- Secretary and Director
Hermano Studart Lins de Albuquerque
/S/ CARLOS ANDRE STUDART LINS DE ALBUQUERQUE President, Chief Operating
- -------------------------------------------- Officer, Treasurer and Director
Carlos Andre Studart Lins de Albuquerque
/S/ ALVARO J. AGUIRRE Chief Financial Officer
- -------------------------------------------- (Principal Financial and
Alvaro J. Aguirre Accounting Officer) and Director
/S/ GARY D. NUSBAUM Director
- --------------------------------------------
Gary D. Nusbaum
/S/ JOSE AUGUSTO PINTO MOREIRA Director
- --------------------------------------------
Jose Augusto Pinto Moreira
/S/ CLAUDIO DASCAL Director
- --------------------------------------------
Claudio Dascal
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4.1 Certificate of Incorporation of the Registrant (incorporated
herein by reference to Exhibit 3.1 of the Registrant's
Registration Statement on Form S-1, File No. 333-4512, filed
on May 3, 1996).
4.2 1996 Stock Option Plan (incorporated herein by reference to
Exhibit 10.1 of the Registrant's Registration Statement on
Form S-1, File No. 333-4512, filed on May 3, 1996).
*5 Opinion of Kelley Drye & Warren LLP regarding legality of the
Common Stock being registered.
*23.1 Consent of Kelley Drye & Warren LLP (included in their opinion
filed as Exhibit 5).
*23.2 Consent of Ernst & Young LLP.
*24 Powers of Attorney (See Signature Page).
- -----------------------
*Filed herewith
EXHIBIT 5
KELLEY DRYE & WARREN LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, CT 06901-3229
December 18, 1996
TV Filme, Inc.
c/o ITSA-Intercontinental Telecomunicacoes Ltda.
SCS, Quadra 07-B1.A
Ed. Executive Tower - Sala 601
70.300-911 Brasilia-DF
Brazil
Re: 1996 STOCK OPTION PLAN
----------------------
Dear Sirs:
We are acting as counsel to TV Filme, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission (the "Commission") of a Registration Statement on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Act"). The Registration Statement relates to 936,432 shares of the
Company's Common Stock, $0.01 par value per share (the "Shares"), which are to
be issued pursuant to the Company's 1996 Stock Option Plan (the "Plan").
In connection with this opinion, we have examined and relied upon copies
certified or otherwise identified to our satisfaction of: (i) the Plan; (ii) an
executed copy of the Registration Statement; (iii) the Company's Certificate of
Incorporation and By-laws; (iv) the minute books and other records of corporate
proceedings of the Company, as made available to us by officers of the Company;
and have reviewed such matters of law as we have deemed necessary or appropriate
for the purpose of rendering this opinion.
For purposes of this opinion we have assumed the authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of all documents submitted to us as copies. We
have also assumed the legal capacity of all natural persons, the genuineness of
all signatures on all documents examined by us, the authority of such persons
signing on behalf of the parties thereto other than the Company and the due
authorization, execution and delivery of all documents by the parties thereto
other than the Company. As to certain factual matters material to the opinion
expressed herein, we have relied to the extent we deemed proper upon
representations, warranties and statements as to factual matters of officers and
other representatives of the Company. Our opinion expressed below is subject to
the qualifications that we express no opinion as to any law of any jurisdiction
other than laws of the States of Delaware and New York and the federal laws of
the United States of America. Without limiting the foregoing, we express no
opinion with respect to the applicability thereto or effect of municipal laws or
the rules, regulations or orders of any municipal agencies within any such
state.
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, it is our opinion that
the Shares to be issued by the Company pursuant to the Plan have been duly
authorized and reserved for issuance and, when certificates for the Shares have
been duly executed by the Company, countersigned by a transfer agent, duly
registered by a registrar for the Shares and issued and paid for in accordance
with the terms of the Plan, the Shares will be validly issued, fully paid and
non-assessable.
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the States of Delaware or New York or the federal laws of the United
States of America be changed by legislative action, judicial decision or
otherwise.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
/s/ KELLEY DRYE & WARREN LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
on Form S-8, relating to the 1996 Stock Option Plan of our report dated January
18, 1996, except as to Note 1, as to which the date is July 24, 1996, with
respect to the financial statements and schedules of TV Filme, Inc. in the
Registration on Form S-1 (No. 333-4512), as amended, and related Prospectus of
TV Filme, Inc., filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
AUDITORES INDEPENDENTES S.C.
Sao Paulo, Brazil
December 13, 1996
