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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CLEARVIEW CINEMA GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-3338356
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
7 WAVERLY PLACE 07940
MADISON, NEW JERSEY (Zip Code)
(Address of principal executive offices)
CLEARVIEW CINEMA GROUP, INC.
1997 STOCK INCENTIVE PLAN
(Full title of the plan)
A. DALE MAYO
CHAIRMAN OF THE BOARD, PRESIDENT, AND CHIEF EXECUTIVE OFFICER
7 WAVERLY PLACE
MADISON, NJ 07940
(Name and address of agent for service)
(201) 377-4646
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
TITLE OF PROPOSED PROPOSED AMOUNT OF
SECURITIES AMOUNT TO BE MAXIMUM MAXIMUM REGISTRATION
TO BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE FEE
PER SHARE(1) OFFERING PRICE
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Common Stock, 200,000 $13.75 $2,750,000 $812
par value shares
$.01 per
share
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). The fee is calculated on the basis of the average of
the high and low prices for Clearview Cinema Group, Inc.'s Common Stock reported
on the American Stock Exchange on February 20, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Clearview Cinema Group, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), or
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference into this Registration Statement: (i) the prospectus
(the "Prospectus) filed with the Commission as part of the Registration
Statement on Form SB-2 (File No. 333-27819), filed on May 29, 1997, as amended
by Amendment No. 1, filed on July 19, 1997, Amendment No. 2, filed on August 4,
1997, Amendment No. 3, filed on August 11, 1997, and Amendment No. 4, filed on
August 12, 1997, (ii) the Registrant's Quarterly Reports on Form 10-QSB for the
quarters ended June 30, 1997 and September 30, 1997, (iii) the Registrant's
Current Reports on Form 8-K dated December 12, 1997 and December 31, 1997 and
(iv) the description of the Registrant's Common Stock contained in the
Prospectus, including all amendments and reports updating such description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Registration Statement, but prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered by this Registration Statement have been sold or which deregisters all
such securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement. Each document incorporated by
reference into this Registration Statement shall be deemed to be a part of this
Registration Statement from the date of filing of such document with the
Commission until the information contained therein is superseded or updated by
any subsequently filed document which is incorporated by reference into this
Registration Statement or by any document which constitutes part of the
prospectus relating to the Clearview Cinema Group, Inc. 1997 Stock Incentive
Plan (the "Plan") meeting the requirements of Section 10(a) of the Securities
Act.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered under this Registration Statement is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is hereby made to Section 145 of the Delaware General Corporation
Law ("DGCL"), which provides that a corporation will have the power to indemnify
any person who was or is a party or is threatened to be made a party to a
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "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 as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, with respect to the payment of certain
amounts under certain circumstances.
Article IX (the "Article") of the Amended and Restated Certificate of
Incorporation of Clearview Cinema Group, Inc. provides that the Registrant will
indemnify and hold harmless, to the fullest extent permitted by applicable law,
any person who was or is made or is threatened to be made a party or is
otherwise involved in any proceeding by reason of the fact that he, or a person
for whom he is the legal representative, is or was a director, officer, employee
or agent of the Registrant or is or was serving at the request of the Registrant
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans.
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The Article provides that the rights to indemnification and advancement of
expenses conferred by the Article are presumed to have been relied upon by
directors and officers of the Registrant in serving or continuing to serve the
Registrant and are enforceable as contract rights. Said rights are not exclusive
of any other rights to which those seeking indemnification may otherwise be
entitled. The Article further provides that the Registrant may enter into
contracts to provide its directors and officers with specific rights to
indemnification, which contracts may confer rights and protections to the
maximum extent permitted by the DGCL. In addition, the Registrant may create
trust funds, grant security interests, obtain letters of credit, or use other
means to ensure payment of such amounts as may be necessary to perform the
obligations provided for in the Article or in any such contract.
The Article states that any repeal or modification of the Article by the
stockholders of the Registrant will not adversely affect any right or protection
of a director of the Registrant existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such repeal or
modification.
The Article further provides that the personal liability of a director of
the Registrant is eliminated to the fullest extent permitted by Section
102(b)(7) of the DGCL, as the same may be amended and supplemented. The Article
states that, without limiting the generality of the foregoing, no director will
be personally liable to the Registrant or any of its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
misconduct or a knowing violation of the law, (iii) pursuant to Section 174 of
the DGCL (relating to unlawful distributions and redemptions of shares), or (iv)
for any transaction from which the director derived an improper personal
benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference as
part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
4.1 Amended and Restated Certificate of Incorporation of
Clearview Cinema Group, Inc. (incorporated by reference to
Exhibit 3.01(b) to Amendment No. 2 to the Registrant's
Registration Statement on Form SB-2, filed with the
Commission on May 29, 1997 (File No. 333-27819)).
4.2 Amended and Restated By-laws of Clearview Cinema Group, Inc.
(incorporated by reference to Exhibit 3.02(b) to Amendment
No. 2 to the Registrant's Registration Statement on Form
SB-2, filed with the Commission on May 29, 1997 (File No.
333-27819)).
5.1 Opinion of Herbert L. Klein, General Counsel & Secretary of
the Registrant, as to the legality of the shares being
registered.
23.1 Consent of Wiss & Company, LLP.
23.2 Consent of Herbert L. Klein, General Counsel & Secretary of
the Registrant (included in the Opinion filed as Exhibit
5.1).
24.1 Power of Attorney (set forth on the signature page of this
Registration Statement).
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers of 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 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 Exchange
Act that are incorporated by reference in the 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 Section 15(d) of
the Exchange Act 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 thereto.
* * *
(h) 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 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 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, 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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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 Town of Madison, State of New Jersey, on this 22nd day
of January, 1998.
CLEARVIEW CINEMA GROUP, INC.
By: /S/ A. DALE MAYO
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A. Dale Mayo
Chairman of the Board, President,
and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints A. Dale Mayo his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same with all exhibits thereto, and other documentation in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent 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 or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or 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 in the
capacities and on the date(s) indicated:
SIGNATURE CAPACITY DATE
/S/ A. DALE MAYO
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A. Dale Mayo Chairman of the Board, January 22, 1998
President, Chief Executive
Officer, and a Director
(Principal Executive Officer)
/S/ JOAN M. ROMINE
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Joan M. Romine Treasurer and Chief Financial January 22, 1998
Officer (Principal Financial
and Accounting Officer)
/S/ SUEANNE HALL MAYO
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Sueanne Hall Mayo Vice President - Management January 22, 1998
Information Systems,
Secretary, and a Director
/S/ WAYNE L.CLEVENGER
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Wayne L. Clevenger Director January 22, 1998
/S/ ROBERT G. DAVIDOFF
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Robert G. Davidoff Director February 3, 1998
/S/ BRETT E. MARKS
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Brett E. Marks Director January 21, 1998
/S/ DENIS NEWMAN Director January 22, 1998
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Denis Newman
/S/ PHILIP GETTER Director February 5, 1998
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Philip Getter
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION SEQUENTIAL PAGE NUMBER
4.1 Amended and Restated Certificate of --
Incorporation of Clearview Cinema Group,
Inc. (incorporated by reference to
Exhibit 3.01(b) to Amendment No. 2 to
the Registrant's Registration Statement
on Form SB-2, filed with the Commission
on May 29, 1997 (File No. 333-27819)).
4.2 Amended and Restated By-laws of --
Clearview Cinema Group, Inc.
(incorporated by reference to Exhibit
3.02(b) to Amendment No. 2 to the
Registrant's Registration Statement on
Form SB-2, filed with the Commission on
May 29, 1997 (File No. 333-27819)).
5.1 Opinion of Herbert L. Klein, General --
Counsel & Secretary of the Registrant,
as to the legality of the shares being
registered.
23.1 Consent of Wiss & Company, LLP. --
23.2 Consent of Herbert L. Klein, General --
Counsel & Secretary of the Registrant
(included in Opinion filed as Exhibit 5.1).
24.1 Power of Attorney (set forth on the
signature page of this Registration --
Statement).
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Exhibit 5.1
February 13, 1998
Clearview Cinema Group, Inc.
7 Waverly Place
Madison, New Jersey 07940
Ladies and Gentlemen:
I am General Counsel & Secretary of Clearview Cinema Group, Inc. (the
"Company"). I have reviewed the Company's Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to the registration under the Securities Act of 1933, as
amended, of 200,000 shares of Common Stock of the Company, par value $.01 per
share (the "Shares"), which may be issued by the Company pursuant to the
Clearview Cinema Group, Inc. 1997 Stock Incentive Plan (the "Plan").
I am familiar with the Registration Statement and the Plan, and have
examined the Company's Amended and Restated Certificate of Incorporation and the
Company's Amended and Restated By-laws. I have also examined such other public
and corporate documents, certificates, instruments and corporate records, and
such questions of law, as I have deemed necessary or appropriate for the
purposes of this opinion.
Based on the foregoing, I am of the opinion that the Shares have been duly
authorized and will, when issued in accordance with the provisions of the Plan,
be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Herbert L. Klein
General Counsel & Secretary
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated February 10, 1997 relating to the
consolidated financial statements of Clearview Cinema Group, Inc.; April 1, 1997
relating to the combined financial statements of the Nelson Ferman Theaters at
Emerson, New City, Allwood, and Washington Township; April 10, 1997 relating to
the combined financial statements of Magic Cinemas at Bergenfield, Tenafly and
Closter; and June 4, 1997 relating to the combined financial statements of
United Artists Theaters at Bronxville, Larchmont, Wayne, New City and
Mamaroneck.
/s/ Wiss & Company, LLP
Woodbridge, New Jersey
February 13, 1998
