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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 3, 1998.
REGISTRATION NO. 333-35337.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 6
TO
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NEW FRONTIER MEDIA, INC.
(Exact name of small business issuer as specified in its charter)
COLORADO 5190 84-1084061
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Identification
No.)
incorporation or organization) Classification Code Number)
1050 WALNUT STREET, SUITE 301
BOULDER, COLORADO 80302
(303) 444-0632
(Address, including zip code, and telephone number,
including area code, of registrant's principal place of business)
------------------------------
MICHAEL WEINER
1050 WALNUT STREET, SUITE 301
BOULDER, COLORADO 80302
(303) 444-0632
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies of all communications to:
Issuer's Counsel: Underwriter's Counsel:
HANK GRACIN, ESQ. DENNIS J. DOUCETTE, ESQ.
Lehman & Eilen Luce, Forward, Hamilton & Scripps LLP
50 Charles Lindbergh Blvd. 600 West Broadway, Suite 2600
Uniondale, New York 11553 San Diego, California 92101
Telephone: (516) 222-0888 Telephone: (619) 236-1414
Facsimile: (516) 222-0948 Facsimile: (619) 232-8311
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, check the following box: / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITY AMOUNT BEING MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION
BEING REGISTERED REGISTERED(1) PRICE PER SHARE(2) PRICE FEE
<S> <C> <C> <C> <C>
Units....................................... 1,725,000 $5.25 $9,056,250 $2,672(3)
Common Stock, par value $.0001 per share.... 1,725,000 (3) (3) (3)
Redeemable Common Stock Purchase Warrants... 1,725,000 (3) (3) (3)
Common Stock, par value $.001 per share,
issuable upon exercise of Redeemable
Common Stock Purchase Warrants............ 1,725,000 $6.50 $11,212,500 $3,308
Common Stock, par value $.001 per share,
issuable upon exercise of the
Underwriter's Warrants(4)................. 150,000 $6.75 $1,012,500 $299
Totals...................................... $21,281,250 $6,279
</TABLE>
(1) Includes 225,000 Units which the Underwriters have the option to purchase to
cover overallotments, if any.
(2) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(a) promulgated under the Securities Act of 1933, as
amended.
(3) Included in the Units. No additional registration fee is required.
(4) The Company has agreed to sell the Managing Underwriter a Warrant (the
"Underwriter's Warrant") for $100 at closing of this offering. The
Underwriter's Warrant shall entitle the Managing Underwriter to purchase up
to 10 percent of the number of shares of Common Stock underlying the Units
purchased by the underwriters in this offering. The Underwriter's Warrant is
exercisable at $6.75 per share of Common Stock, for a period of four years
beginning one year from the date of closing of this offering. See
"UNDERWRITING."
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(i) Article 3, Section 3.17 of the Company's First Amended and Restated
Bylaws provides as follows:
"SECTION 3.17
LIMITATIONS ON LIABILITY
To the fullest extent permitted by the Colorado Business Corporation Act as
the same exists or may hereafter be amended, a director of the corporation shall
not be liable to the corporation or its stockholders for monetary damages for
any action taken or any failure to take any action as a director.
Notwithstanding the foregoing, a director will have liability for monetary
damages for a breach or failure which involves: (i) a violation of criminal law;
(ii) a transaction from which the director derived an improper personal benefit,
either directly or indirectly; (iii) destributions in violation of the Colorado
Business Corporation Act or the Articles of the corporation (but only to the
extent provided by law); (iv) willful misconduct or disregard for the best
interests of the corporation concerning any acts or omissions concerning any
proceeding other than in the right of the corporation or a shareholder; or, (v)
reckless, malicious or wanton acts or omissions concerning any proceeding other
than in the right of the corporation or of a shareholder. No repeal, amendment
or modiffication of this Article, whether direct or indirect, shall eliminate or
reduce its effect with respect to any act or omission of a director of the
corporation occurring prior to such repeal, amendment or modification."
(ii) Article 3, Section 3.18 of the Company's First Amended and Restated
Bylaws provides as follows:
"SECTION 3.18
INDEMNIFICATION
Subject to and in accordance with the Colorado Business Corporation Act, and
except as may be expressly limited by the Articles of Incorporation and any
amendments thereto, the corporation shall indemnify any person:
(i) made a party to any proceeding (other than an action by, or in the
right of, the corporation) 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 corporation's request, as a director, officer, employee or
agent of another corporation, or other enterprise; or,
(ii) who was or is a party to any proceeding by or in the right of the
corporation, to procure a judgment in its favor by reason of the fact that
his 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. This indemnification shall be mandatory in all
circumstances in which indemnification is permitted by law.
The corporation may maintain indemnification insurance regardless of its
power to indemnify under the Colorado Business Corporation Act.
The corporation may make any other or further indemnification or advancement
of expenses of any of the directors, officers, employees or agents under any
bylaw, agreement, vote of shareholders or disinteredsted directors or otherwise,
both as to action in his or her official capacity and to action in another
capacity while holding such office, except an indemnification against material
criminal or unlawful misconduct as set forth by statute, or as to any
transaction wherein the director derived an improper personal benefit.
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Except to the extent reimbursement shall be mandatory in accordance
herewith, the corporation shall have the right to refuse indemnification, in
whole or in part, in any instance in which the person to whom indemnification
would otherwise have been applicable, if he or she unreasonable refused to
permit the corporation, at its own expense and through counsel of its own
choosing, to defend him or her in the action, or unreasonably refused to
cooperate in the defense of such action."
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.(1)
<TABLE>
<S> <C>
SEC Registration Fee............................................... 6,279
NASD Filing Fee.................................................... 2,628
Blue Sky Filing Fees............................................... 10,000
Blue Sky Legal Fees................................................ 20,000
Printing Expenses.................................................. 80,000
Legal Fees and Expenses............................................ 100,000
Accounting Fees.................................................... 30,000
Transfer Agent..................................................... 3,000
NASDAQ SmallCap Application Fee.................................... 5,000
Miscellaneous Expenses............................................. 18,093
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TOTAL............................................................ 275,000(1)
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</TABLE>
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(1) Does not include the Managing Underwriter's commission and nonaccountable
expenses of $1,023,750 ($1,177,313 if the Overallotment Option is
exercised). All expenses, except the SEC registration fee, the NASD filing
fee, and the NASDAQ SmallCap application fee are estimated.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
During the last three years, the Company has sold the following shares of
its Common Stock which were not registered under the 1933 Act, as amended:
(i) Between March 1, 1996 and June 30, 1996, the Company sold 195,200
Units in an exempt private placement to accredited investors only. Each Unit
consisted of one share of Common Stock and one Warrant (the "Unit Warrant")
to purchase an additional share of Common Stock. On or about December 15,
1996, the Company's Board of Directors extended the exercise date for the
Unit Warrant to December 31, 1997. The exercise price for each Unit Warrant
is $5.50.
(ii) From time to time, the Company has issued a total of 146,666
non-qualified stock options to employees. Each option allows the holder to
purchase one share of the Company's Common Stock, at an exercise price of
$6.00 per share. The options are exercisable through December 31, 1997.
(iii) In February and March, 1997, the Company issued a total of 5,000
shares of its Preferred Series B stock to one accredited investor for total
consideration of $20,000. In July, 1997, the investor converted his
Preferred Series B shares into 20,000 shares of the Company's restricted
Common Stock, pursuant to the Statement of Series B Preferred Shares.
(iv) On May 31, 1997, the Company issued 2,511 shares of restricted
Common Stock to Krausman, L.L.C. for services valued at $7,533.12.
With respect to the sales made, the Company relied on Sections 4(2) and 4(6)
of the Securities Act of 1933, as amended (the "1933 Act"). The Company employed
no advertising or general solicitation in offering the securities. The
securities were offered to a limited number of persons, all of whom were
business associates of the Company or its executive officers and directors, and
the tranfer thereof was appropriately restricted by the Company and its transfer
agent. All shareholders were accredited investors as that term is defined in
Rule 501 of Regulation D under the 1933 Act, and were capable of analyzing the
II-2
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merits and risks of their investment and acknowledged in writing that they were
acquiring the securities for investment purposes only, and not with a view
toward distribution or resale. Each investor represented in writing that he or
she understood the speculative nature of his or her investment.
ITEM 27. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. TITLE
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<C> <S>
1.01+ Form of Underwriting Agreement
1.02+ Form of Agreement Among Underwriters
1.03+ Form of Selected Dealer Agreement
1.04+ Form of Underwriter's Warrant
1.05+ Form of Lock-up Agreement
3.01+ Articles of Incorporation of Company, with Amendment
3.02+ Articles of Incorporation--Inroads
3.03+ Articles of Incorporation--David
3.04+ Articles of Incorporation--In-Sight
3.05+ Articles of Incorporation--CSB
3.06+ First Amended Bylaws of Company
4.01+ Form of Common Stock Certificate
5.01+ Opinion of Combs & Associates regarding legality of the Common Stock (includes consent)
5.02+ Opinion of Combs & Associates re: Quarto claims
10.01+ Asset Purchase Agreement Among the Company, CSB, Fifth Dimension Communications (Barbados)
Inc., and Merlin Sierra, Inc.
10.02+ Asset Purchase Agreement Among the Company, CSB, and 1043133 Ontario Inc.
10.03+ Asset Purchase Agreement Among the Company, CSB, and 1248663 Ontario Inc.
10.04+ Revocable Line of Credit Agreement
10.05+ Promissory Note
10.06+ Form of Warrant Agreement
10.07+ Call Center Interim Service Agreement between the Company and 1248663 Ontario Inc.
11.01+ Computation of Earnings Per Share
23.01 Consent of Spicer, Jeffries & Co.
23.02 Consent of Ernst & Young
23.03+ Consent of Combs & Associates (See 5.01, above)
23.04+ Consent of Combs & Associates
27.01+ Financial Data Schedule
</TABLE>
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+ Previously filed.
II-3
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ITEM 28. UNDERTAKINGS.
The Company hereby undertakes:
(a) That insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
Company, the Company has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the 1933 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 Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of approprate jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the 1933 Act, and will be governed by the
final adjudication of such issue.
(b) That, subject to the terms and conditions of Section 13(a) of the
Securities Exchange Act of 1934, it will file with the Securities and Exchange
Commission such supplementary and periodic information, documents and reports as
may be prescribed by any rule or regulation of the Commission heretofore or
hereafter duly adopted pursuant to authority conferred in that section.
(c) That any post-effective amendment filed will comply with the applicable
form, rules and regulations of the Commission in effect at the time such
post-effective amendment is filed.
(d) 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 1933
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;
(e) That, for the purpose of determining any liability under the 1933 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.
(f) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
this offering.
(g) To provide to the Managing Underwriter at the closing specified in the
Underwriting Agreement certificates in such denominations and registered in such
names as required by the Underwriter to permit prompt delivery to each
purchaser.
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SIGNATURES
Pursuant to the requirements of the 1933 Act, as amended, the Company
certifies that it has reasonable grounds to believe that it meets the
requirements of filing on Form SB-2 and has caused this Amendment No. 6 to the
Registration Statement on Form SB-2 to be signed on its behalf by the
undersigned, thereunto duly authorized, in Boulder, Colorado on February 3,
1998.
<TABLE>
<S> <C> <C>
NEW FRONTIER MEDIA, INC.
By:
/s/ MARK H. KRELOFF
---------------------------------------------
Mark H. Kreloff
PRESIDENT
</TABLE>
Pursuant to the requirements of the 1933 Act, as amended, this Registration
Statement has been signed below by the following persons on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
/s/ MARK H. KRELOFF
- ------------------------------ Chairman, Chief Executive February 3, 1998
Mark H. Kreloff Officer, President
/s/ MICHAEL WEINER Executive Vice President,
- ------------------------------ Secretary, Treasurer and February 3, 1998
Michael Weiner Director
/s/ SCOTT WUSSOW Chief Financial Officer
- ------------------------------ (Principal Accounting February 3, 1998
Scott Wussow Officer)
/s/ CLIVE NG
- ------------------------------ Director February 3, 1998
Clive Ng
/s/ KOUNG Y. WONG
- ------------------------------ Director February 3, 1998
Koung Y. Wong
II-5
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. TITLE NO.
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<S> <C> <C>
1.01+ Form of Underwriting Agreement
1.02+ Form of Agreement Among Underwriters
1.03+ Form of Selected Dealer Agreement
1.04+ Form of Underwriter's Warrant
1.05+ Form of Lock-up Agreement
3.01+ Articles of Incorporation of Company
3.02+ Articles of Incorporation--Inroads
3.03+ Articles of Incorporation--David
3.04+ Articles of Incorporation--In-Sight
3.05+ Articles of Incorporation--CSB
3.06+ First Amended Bylaws of Company
4.01+ Form of Common Stock Certificate
5.01+ Opinion of Combs & Associates regarding legality of the Common Stock (incudes consent)
5.02+ Opinion of Combs & Associates re: Quarto claims.
10.01+ Asset Purchase Agreement Among the Company, CSB, Fifth Dimension Communications (Barbados)
Inc., and Merlin Sierra, Inc.
10.02+ Asset Purchase Agreement Among the Company, CSB, and 1043133 Ontario Inc.
10.03+ Asset Purchase Agreement Among the Company, CSB, and 1248663 Ontario Inc.
10.04+ Revocable Line of Credit Agreement
10.05+ Promissory Note
10.06+ Form of Warrant Agreement
10.07+ Call Center Interim Service Agreement between the Company and 1248663 Ontario Inc.
11.01+ Computation of Earnings Per Share
23.01 Consent of Spicer, Jeffries & Co.
23.02 Consent of Ernst & Young
23.03+ Consent of Combs & Associates (See 5.01, above)
23.04+ Consent of Combs & Associates
27.01+ Financial Data Schedule
</TABLE>
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+ Previously Filed.
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in the New Frontier Media, Inc. registration
statement, on Form SB-2 Amendment No. 6 of our report dated July 3, 1997,
accompanying the consolidated financial statements of New Frontier Media, Inc.
for the years ended March 31, 1997 and 1996 which is part of the registration
statement and to the reference to us under the heading "Experts" in such
registration statement.
SPICER, JEFFRIES & CO.
February 3, 1998
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts"
and to the use of our report dated June 27, 1997, with respect to the
combined financial statements of Fifth Dimension Communications
(Barbados) Inc., 1043313 Ontario Inc. and Merlin Sierra Inc. included
in the Registration Statement of Form SB-2 related to the issuance of
common stock of New Frontier Media, Inc.
ERNST & YOUNG
Ottawa, Canada
February 3, 1998 CHARTERED ACCOUNTANTS
