<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 10, 1999
REGISTRATION NO. 333-75733
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NEW FRONTIER MEDIA, INC.
(Name of registrant as specified in its charter)
<TABLE>
<S> <C>
COLORADO 84-1084061
(State or jurisdiction of incorporation or (IRS Employer Identification No.)
organization)
5435 Airport Blvd, Suite 100 MICHAEL WEINER
Boulder, CO 80301 5435 Airport Blvd, Suite 100
(303) 444-0900 Boulder, CO 80301
Facsimile No.: (303) 444-0734 (303) 444-0900
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including area code, of registrant's principal including area code, of agent for service)
executive offices)
</TABLE>
------------------------
Copy to:
Hank Gracin, Esq.
Lehman & Eilen
50 Charles Lindbergh Boulevard, Suite 505
Uniondale, New York 11553
(516) 222-0888 Facsimile (516) 222-0948
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the effective date of this registration
statement.
If 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 other than securities offered only in connection with dividend or interest
reinvestment plan, please check the following box: /X/
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 statement 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: / /
------------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO OFFERING PRICE OFFERING REGISTRATION
REGISTERED BE REGISTERED PER SHARE(1) PRICE(1) FEE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.0001 per
share................................. 2,610,000 $3.969 $10,359,090 $3,055.93(2)
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee. The
Proposed Maximum Aggregate Offering Price was calculated pursuant to Rule
457(c) under the Securities Act of 1933, as amended, on the basis of the
closing price reported in the NASDAQ SmallCap Market system on April 5,
1999.
(2) Previously Paid.
------------------------
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 or until the registration statement shall become
effective on such date as the commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Pursuant to Rule 429 of the Securities Act of 1933, the prospectus included
in this registration statement also relates to certain unsold securities of the
Registrant registered under registration statement No. 333-35337.
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND THE SELLING STOCKHOLDERS ARE NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION DATED AUGUST 10, 1999
PROSPECTUS
NEW FRONTIER MEDIA, INC.
2,610,000 SHARES OF COMMON STOCK
------------------------
The 2,610,000 shares of common stock are being offered by the selling
stockholders. The common stock currently trades on the NASDAQ SmallCap Market
under the symbol "NOOF". On August 9, 1999, the last sale price of the common
stock as reported on NASDAQ was $6 14/16 per share.
The common stock may be sold by the selling stockholders directly or
through underwriters, dealers or agents in market transactions or privately
negotiated transactions.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. CONSIDER CAREFULLY THE RISK
FACTORS BEGINNING ON PAGE 5 IN THIS PROSPECTUS.
The date of this prospectus is , 1999
<PAGE>
PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere in this
prospectus. It is not complete and may not contain all of the information that
is important to you. To understand this offering fully, you should read the
entire prospectus carefully, including the risk factors and financial
statements.
NEW FRONTIER MEDIA, INC.
Offices: 5435 Airport Blvd, Suite 100,
Boulder, Colorado 80301
Telephone number (303) 444-0900
Facsimile number (303) 444-0734
THE OFFERING
<TABLE>
<S> <C>
Common Stock Offered by Selling
Stockholders................................. 2,610,000 shares.
Common Stock to be offered by us............. 0 shares
Common Stock Outstanding Before Offering
(1).......................................... 13,079,517 shares
Common Stock Outstanding After Offering...... 13,079,517 shares
Use of Proceeds.............................. All of the shares offered by this prospectus
are being offered by the selling
stockholders. New Frontier Media will not
receive any proceeds from these sales of its
stock.
</TABLE>
- ------------------
(1) Based on shares outstanding as of August 9, 1999.
RECENT EVENTS
On July 27, 1999, New Frontier Media announced that it had executed a
definitive license agreement to acquire exclusive electronic rights to Metro
Global Media, Inc.'s 3,000 title adult film and video library and multi-million
still image archive for a period of seven years with renewal provisions. In
addition, New Frontier Media entered into a multi-year production agreement with
Metro Global Media, Inc. which calls for the development of an additional 400
new adult feature titles over the next five years.
Under the agreement, New Frontier Media will issue 500,000 restricted
shares of its common stock to Metro in exchange for distribution rights to its
3,000 adult film and video library and its multi-million still image archive.
Metro will also receive cash consideration for the production of over 400 new
titles and the exclusive electronic distribution rights to those titles.
The licensing agreement provides New Frontier Media the right to utilize
Metro's adult film and video library for all formats of electronic delivery,
including dial-up internet, broadband internet, video-on-demand, subscription
and pay television, and other video delivery mechanisms.
In a June 2, 1999 complaint filed in District Court in Boulder, Colorado
(Case No. 99CV913), Scott Wussow, our former chief financial officer, seeks to
enforce an alleged oral agreement to increase his salary, bonus and car
allowance, and issue to him warrants to purchase up to 300,000 shares of our
common stock, following our public offering of February 1998. We dispute that
there was any promise or agreement, oral or otherwise, made to or with Mr.
Wussow to increase his compensation. We intend to vigorously defend against Mr.
Wussow's claim. In the event we do not prevail in this case, we estimate our
total potential liability to be less than $200,000.
RISK FACTORS
This prospectus and the documents incorporated in this prospectus by
reference may contain forward-looking statements within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act. These
forward-looking statements are based on current expectations, estimates and
3
<PAGE>
projections about our industry, management's beliefs and assumptions made by
management. Words such as "anticipates," "expects," "intends," "plans,"
"believes," "seeks," "estimates," variations of such words and similar
expressions are intended to identify such forward-looking statements. These
statements are not guarantees of future performance and are subject to certain
risks, uncertainties and assumptions that are difficult to predict.
Accordingly, actual results may differ materially from those expressed or
forecasted in any such forward-looking statements. Such risks and uncertainties
include those risk factors and such other uncertainties noted in the prospectus
and in the documents incorporated herein by reference. New Frontier assumes no
obligation to update publicly any forward-looking statements, whether as a
result of new information, future events or otherwise.
NEW FRONTIER MEDIA HAS INCURRED LOSSES FROM INCEPTION AND MAY NEVER GENERATE
SUBSTANTIAL PROFITS, IF ANY AT ALL.
We were organized in July, 1995 and have incurred losses from inception. We
may never generate substantial profits, if any at all. We incurred a net loss of
$7,581,124, or $1.04 per share, on revenues of $9,452,432 for the fiscal year
ended March 31, 1999 and a net loss of $3,258,343, or $.73 per share, on
revenues of $712,581 for the fiscal year ended March 31, 1998. As of March 31,
1999 we had an accumulated deficit of $10,278,197. Our ability to operate
profitably is dependent upon successful execution of our business plan.
LIMITS ON OUR ACCESS TO DISTRIBUTION CHANNELS COULD CAUSE US TO LOSE SUBSCRIBER
REVENUES AND ADVERSELY AFFECT OUR OPERATING PERFORMANCE.
Our satellite uplink providers' services are critical to us. If our
satellite uplink providers fail to provide the services contracted for with
them, our satellite programming operations would in all likelihood be suspended,
resulting in a loss of substantial revenues to the Company. If our satellite
uplink providers improperly manage their uplink facilities, we could experience
signal disruptions and other quality problems that, if not immediately
addressed, could cause us to lose subscribers and subscriber revenues.
Our continued access to satellite transponders is critical to us. Our
satellite programming operations require continued access to satellite
transponders to transmit programming to our subscribers. We also use satellite
transponders to transmit programming to cable operators. Material limitations to
satellite transponder capacity could materially adversely affect our operating
performance. Access to transponders may be restricted or denied if:
* we or the satellite owner is indicted or otherwise charged as a
defendant in a criminal proceeding;
* the FCC issues an order initiating a proceeding to revoke the satellite
owner's authorization to operate the satellite;
* the satellite owner is ordered by a court or governmental authority to
deny us access to the transponder;
* we are deemed by a governmental authority to have violated any obscenity
law; or
* our satellite transponder provider determines that the content of our
programming is harmful to its name or business.
In addition to the above, the access of our networks to transponders may be
restricted or denied if a governmental authority commences an investigation
concerning the content of the transmissions.
Our ability to convince cable operators to carry our programming is
critical to us. The primary way for us to expand our cable subscriber base is to
convince additional cable operators to carry our programming. We can give no
assurance, however, that our efforts to increase our base of cable subscribers
will be successful.
4
<PAGE>
WE HAVE BEEN SUED BY A PROSPECTIVE INVESTOR SEEKING TO ENFORCE AN ALLEGED
AGREEMENT TO CONVEY A 70% EQUITY INTEREST IN NEW FRONTIER MEDIA AND IF WE DO NOT
PREVAIL IN THIS LAWSUIT WE COULD SUFFER A MATERIAL FINANCIAL LOSS.
In a January 25, 1999 amended complaint in District Court in Boulder,
Colorado, (Case No. 99CV30), J.P. Lipson seeks to enforce an alleged agreement
by New Frontier Media to convey to Lipson a 70% equity interest in New Frontier
Media. Lipson is also seeking $10 million in liquidated damages and/or
unspecified damages. If we do not prevail in this lawsuit, we could suffer a
material financial loss which loss, if any, can not be estimated. We dispute
that there exists a binding and enforceable agreement to transfer any equity
interest in New Frontier Media to Lipson and filed on February 10, 1999 a motion
for partial summary judgement directed to this issue. To date the Court has
neither ruled on nor set our motion for a hearing. We will continue to
vigorously defend against Lipson's claims.
IF WE ARE UNABLE TO COMPETE EFFECTIVELY WITH OUR PRIMARY COMPETITOR, WHO HAS
SIGNIFICANTLY GREATER RESOURCES THAN US, WE WILL NOT BE ABLE TO INCREASE
SUBSCRIBER REVENUES OR GENERATE PROFITS.
Our ability to increase subscriber revenues and operate profitably, is
directly related to our ability to compete effectively with Playboy, our
principal competitor. Playboy has significantly greater financial, sales,
marketing and other resources to devote to the development, promotion and sale
of its cable programming products, as well as a longer operating history and
broader name recognition, than we do. We compete with Playboy as to the editing
standards of its programming, network performance in terms of subscriber buy
rates and the license fees that we offer to cable and DBS system providers.
IF WE ARE UNABLE TO COMPETE EFFECTIVELY WITH OTHER FORMS OF ADULT AND NON-ADULT
ENTERTAINMENT, WE WILL ALSO NOT BE ABLE TO INCREASE SUBSCRIBER REVENUES OR
GENERATE PROFITS.
Our ability to increase subscriber revenues and operate profitably, is also
related to our ability to compete effectively with other forms of adult and
non-adult entertainment. We face competition in the adult entertainment industry
from other providers of adult programming, adult video rentals and sales,
newspapers and magazines aimed at adult consumers, adult oriented telephone chat
lines, and adult oriented Internet services. To a lesser extent, we also face
general competition from other forms of non-adult entertainment, including
sporting and cultural events, other television networks, feature films and other
programming.
IF WE ARE NOT BE ABLE TO RETAIN OUR KEY EXECUTIVES IT WILL BE MORE DIFFICULT FOR
US TO MANAGE OUR OPERATIONS AND OUR OPERATING PERFORMANCE COULD BE ADVERSELY
AFFECTED.
As a small company with approximately 45 employees, our success depends
upon the contributions of our executive officers and our other key technical
personnel. The loss of the services of any of our executive officers or other
key personnel could have a significant adverse effect on our business and
operating results. We cannot assure that New Frontier Media will be successful
in attracting and retaining these personnel. It may also be more difficult for
us to attract and recruit new personnel due to the adult nature of our business.
OUR INABILITY TO IDENTIFY, FUND THE INVESTMENT IN, AND COMMERCIALLY EXPLOIT NEW
TECHNOLOGY COULD HAVE AN ADVERSE IMPACT ON OUR FINANCIAL CONDITION.
We are engaged in a business that has experienced tremendous technological
change over the past two years. As a result, we face all the risks inherent in
businesses that are subject to rapid technological advancement, such as the
possibility that a technology that we have invested in may become obsolete. In
that event, we may be required to invest in new technology. Our inability to
identify, fund the investment in, and commercially exploit such new technology
could have an adverse impact on our financial condition. Our ability to
implement our business plan and to achieve the results projected by management
will be dependent upon management's ability to predict technological advances
and implement strategies to take advantage of such changes.
5
<PAGE>
GOVERNMENT REGULATION OF CABLE SYSTEM OPERATORS COULD MAKE IT MORE DIFFICULT FOR
THEM TO BROADCAST OUR PROGRAMMING AND ADVERSELY AFFECT OUR OPERATING
PERFORMANCE.
Cable system operators could become subject to new governmental regulations
which could further restrict their ability to broadcast our programming. If new
regulations make it more difficult for cable operators to broadcast our
programming our operating performance would be adversely affected. It is not
possible for us to predict what new governmental regulations we may be subject
to in the future.
Cable system operators have been subject to Section 505 of the
Telecommunications Act of 1996 since May 18, 1997. We began offering adult
programming for cable system operators in February 1998. We have never had the
opportunity, or prior history, of selling our programming under any other
regulatory structure. It is difficult to estimate what effect this Act has had
on our potential business and potential subscribers.
Section 505 of the Telecommunications Act effectively requires each cable
system that offers adult programming either to:
* install additional blocking technology in each household to prevent any
momentary fragments of our content from accidentally becoming available to
non-subscribing cable customers or
* restrict the period during which adult programming is transmitted to the
hours between 10:00 p.m. and 6:00 a.m.
Although a United States District Court has unanimously declared this law
unconstitutional and blocked its implementation, the decision has been appealed
and accepted for review by the U.S. Supreme Court. It has been our experience
that most cable system operators are continuing to restrict the broadcast of
adult programming to the hours of 10:00 p.m. to 6:00 a.m. and are unwilling to
rely on the District Court's decision until the U.S. Supreme Court issues its
ruling on the constitutionality of Section 505 of the Act.
NEGATIVE PUBLICITY, LAWSUITS OR BOYCOTTS BY OPPONENTS OF ADULT CONTENT COULD
ADVERSELY AFFECT OUR OPERATING PERFORMANCE AND DISCOURAGE INVESTORS FROM
INVESTING IN OUR PUBLICLY TRADED SECURITIES.
We could become a target of negative publicity, lawsuits or boycotts by one
or more advocacy groups who oppose the distribution of "adult entertainment."
These groups have mounted negative publicity campaigns, filed lawsuits and
encouraged boycotts against companies whose businesses involve adult
entertainment. The costs of defending against any such negative publicity,
lawsuits or boycotts could be significant, could hurt our finances and could
discourage investors from investing in our publicly traded securities. To date,
we have not been a target of any of these advocacy groups. As a leading provider
of adult entertainment, we can not assure you that we may not become a target in
the future.
IF WE ARE UNABLE TO OBTAIN ADDITIONAL FUNDS IN A TIMELY MANNER OR ON ACCEPTABLE
TERMS, WE MAY HAVE TO CURTAIL OR SUSPEND THE PLANNED EXPANSION AND MARKETING
EFFORT, WHICH COULD HAVE A SIGNIFICANT EFFECT ON OUR BUSINESS RELATIONSHIPS,
FINANCIAL RESULTS AND PROSPECTS, WHICH IN TURN COULD LEAD TO OVERALL LOWER
REVENUE.
If we are unable to obtain additional funds in a timely manner or on
acceptable terms, we may have to curtail or, as a last resort, suspend the
planned expansion of our playout facility and the planned marketing effort for
TeN and Pleasure, which could have a significant adverse effect on our business
relationships, financial results and prospects, which in turn could lead to
lower overall revenues. For example, any reduction in our marketing effort for
TeN and Pleasure is likely to adversely affect our business relationships with
those cable operators who have chosen to discontinue Playboy's programming in
favor of ours if the lack of marketing efforts on our part results in such
operators losing subscriber revenues. We anticipate that our capital resources
will be sufficient to satisfy our capital requirements for our current
operations for the next 12 months. We will need, however, additional funds to
upgrade and expand our playout facility to incorporate the Extasy
6
<PAGE>
Networks at our Boulder, Colorado facility and to aggressively market TeN and
our new Pleasure channel to increase carriage among the MSO community. We expect
to receive as much as $9.75 million through the exercise of our 1,500,000
publicly traded warrants, which are currently exercisable at $6.50, which is
below current market levels. In the event that we do not receive at least $5.0
million through the exercise of our public warrants, we will need to raise
additional funds.
BECAUSE WE ARE INVOLVED IN THE ADULT PROGRAMMING BUSINESS, IT MAY BE MORE
DIFFICULT FOR US TO RAISE MONEY OR ATTRACT MARKET SUPPORT FOR OUR STOCK.
Some investors, investment banking entities, market makers, lenders and
others in the investment community may decide not to provide financing to us, or
to participate in our public market or other activities due to the nature of our
business, which, in turn, may hurt the value of our stock, and our ability to
attract market support.
BECAUSE IT MAY BE DIFFICULT TO EFFECT A CHANGE IN CONTROL OF NEW FRONTIER MEDIA
WITHOUT CURRENT MANAGEMENT'S CONSENT, A POTENTIAL SUITOR WHO OTHERWISE MIGHT BE
WILLING TO PAY A PREMIUM FOR ACQUIRING OUR COMPANY MAY DECIDE NOT TO ATTEMPT AN
ACQUISITION OF NEW FRONTIER MEDIA.
Issuance of a poison-pill or a large block of preferred stock with voting
rights could have the effect of delaying, deferring or preventing a change in
control of New Frontier Media. Potential suitors who otherwise might be willing
to pay a premium to acquire New Frontier Media may decide not to try to acquire
us because it may be difficult to effect a change in control of New Frontier
Media without current management's consent. New Frontier Media's board of
directors has the authority to issue up to 5,000,000 shares of preferred stock
and to determine the price, rights, preferences, privileges and restrictions,
including voting rights, of such stock without further shareholder approval. The
rights of the holders of common stock will be subjected to, and may also be
adversely affected by, the rights of the holders of any preferred stock that may
be issued in the future.
FUTURE SALES OF COMMON STOCK MAY CAUSE THE MARKET PRICE OF THE COMMON STOCK TO
DROP.
Future sales of shares of common stock by New Frontier Media and/or its
stockholders could cause the market price of the common stock to drop. There are
currently 5,877,433 restricted shares and 7,202,084 shares of common stock which
are freely tradable or eligible to have the restrictive legend removed pursuant
to Rule 144(k) promulgated under the Securities Act. Of the 5,877,433 restricted
shares, 1,988,800 of such shares are currently eligible for resale under Rule
144. Sales of substantial amounts of common stock in the public market, or the
perception that such sales may occur, could have a significant adverse effect on
the market price of the common stock.
WE ARE SUBJECT TO A COUNTER-CLAIM FOR UNSPECIFIED DAMAGES IN A SUIT WITH A
FORMER FINANCIAL ADVISOR AND IF WE DO NOT PREVAIL IN THIS LAWSUIT WE COULD
SUFFER A MATERIAL FINANCIAL LOSS.
On October 3, 1997, we filed a complaint in District Court in Boulder,
Colorado (Case No. 97 CV 1428) against Sands Brothers & Co. Ltd. alleging breach
by Sands Brothers of the terms of a financial consulting agreement with us. We
also alleged fraud in the inducement, and are seeking return of our initial
payment of $25,000 to Sands Brothers and rescission of the agreement. Sands
Brothers has filed an answer and counter-claim to our complaint seeking
unspecified damages, and we have filed an answer to Sands Brothers
counter-claim. If we do not prevail in this lawsuit we could suffer a material
financial loss. We intend to vigorously pursue our claim against, and defend the
counter-claim from, Sands Brothers.
THE YEAR 2000 PROBLEM COULD CAUSE US TO SUFFER BUSINESS INTERRUPTIONS, OR
SHUTDOWN, REPUTATIONAL HARM OR LEGAL LIABILITY, AND AS A RESULT, MATERIAL
FINANCIAL LOSS.
We recognize that we, like all other businesses, are at risk if key
suppliers in utilities, communications, transportation, banking and government
are not ready for the year 2000. We also are at risk if the cable or DBS
operators with whom we do business are not ready for the year 2000. It is
7
<PAGE>
also possible that our computer software applications, internal accounting,
customer billing and other business systems, working either alone or in
conjunction with those of third parties who do business with us, will not accept
input of, store, manipulate and output dates in the year 2000 or after without
error. If any of this were to happen, we may suffer business interruptions or
shutdown, reputational harm or legal liability and, as a result, material
financial loss.
SHAREHOLDERS MAY NOT BE ABLE TO RE-SELL THEIR STOCK OR MAY HAVE TO SELL AT
PRICES SUBSTANTIALLY LOWER THAN THE PRICE THEY PAID FOR IT.
The trading price for the common stock has been highly volatile and could
continue to be subject to significant fluctuations in response to variations in
our quarterly operating results, general conditions in the adult entertainment
industry or the general economy, and other factors. In addition, the stock
market is subject to price and volume fluctuations affecting the market price
for public companies generally, or within broad industry groups, which
fluctuations may be unrelated to the operating results or other circumstances of
a particular company. Such fluctuations may adversely affect the liquidity of
the common stock, as well as the price that holders may achieve for their shares
upon any future sale.
INDEMNIFICATION
Our Bylaws require us, to the fullest extent permitted or required by
Colorado law, to:
* indemnify our directors against any and all liabilities and
* advance any and all reasonable expenses incurred in any proceeding to
which any such director is a party or in which such director is deposed or
called to testify as a witness because he or she is or was a director of New
Frontier Media.
Generally, Colorado statutory law permits indemnification of a director
upon a determination that he or she acted in good faith and in a manner he or
she 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 or her conduct was unlawful. The right to
indemnification granted in our Bylaws is not exclusive of any other rights to
indemnification against liabilities or the advancement of expenses which a
director may be entitled to under any written agreement, Board resolution, vote
of stockholders, Colorado law or otherwise.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant under 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.
SELECTED FINANCIAL AND OPERATING DATA
The following selected financial and operating data should be read in
conjunction with New Frontier Media's consolidated financial statements and the
notes to these statements and Management's Discussion and Analysis of Financial
Condition and Results of Operations" included in New Frontier Media's Annual
Report on Form 10-KSB for the Twelve Months Ended March 31, 1999 and March 31,
1998. The balance sheet data and statement of operations data as of and for the
years ended March 31, 1999 and 1998 are derived from the consolidated financial
statements of New Frontier Media, incorporated by reference herein, that have
been audited by Spicer, Jeffries & Co., independent accountants.
8
<PAGE>
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31,
----------------------------
<S> <C> <C>
1999 1998
----------- -----------
STATEMENT OF OPERATIONS DATA:
Revenues, net........................................... $ 9,452,432 $ 712,581
Cost of Sales........................................... 8,800,203 1,041,925
----------- -----------
Gross profit (loss)..................................... 652,229 (329,344)
Total operating expenses........................... 7,708,346 1,310,642
----------- -----------
Total other income (expenses)...................... (208,061) (159,454)
----------- -----------
Loss from Continuing Operations......................... (7,264,178) (1,799,440)
Discontinued operations................................. (316,946) (1,458,903)
----------- -----------
Net loss................................................ (7,581,124) $(3,258,343)
----------- -----------
----------- -----------
Basic net loss per share from continuing operations..... ($ 1.00) $ (.40)
----------- -----------
----------- -----------
Basic net loss per share from discontinued operations... ($ .04) $ (.33)
----------- -----------
----------- -----------
Basic net loss per share................................ (1.04) $ (0.73)
----------- -----------
----------- -----------
Diluted net loss per share.............................. (1.04) $ (0.73)
----------- -----------
----------- -----------
Weighted-average shares outstanding..................... 7,288,453 4,460,744
----------- -----------
----------- -----------
BALANCE SHEET DATA:
Working Capital (Deficit)............................... $ 266,301 $ 1,013,736
Total assets............................................ 16,402,571 10,747,949
Long-term debt, net of current portion.................. 474,430 6,716
Stockholders' equity.................................... 10,289,031 8,447,752
</TABLE>
MARKET PRICE OF COMMON STOCK
Prior to February 11, 1998, a limited public market for New Frontier Media
common stock existed on the NASDAQ Bulletin Board under the symbol NOOF.
Commencing on February 11, 1998, our common stock and units were quoted on the
Nasdaq SmallCap Market under the symbols NOOF and NOOFU, respectively. As of the
close of business on May 18, 1998, we split the units into their component
parts, consisting of one share of common stock and one redeemable common stock
purchase warrant. Commencing on May 19, 1998, our warrants were quoted on the
Nasdaq SmallCap Market under the symbol NOOFW. On July 30, 1999, the last sale
price for our common stock as reported on NASDAQ was $8 5/8 per share.
The following table sets forth the high and low closing prices for the
Common Stock as reported on NASDAQ for each quarter since September 30, 1997 for
the periods indicated. Such information reflects inter dealer prices without
retail mark-up, mark down or commissions and may not represent actual
transactions.
<TABLE>
<CAPTION>
QUARTER ENDED HIGH LOW
------------------------------------------------------- --------- ---------
<S> <C> <C>
September 30, 1997..................................... 5 1/2 5
December 31, 1997...................................... 5 3/4 4 3/4
March 31, 1998......................................... 5 1/4 2 7/8
June 30, 1998.......................................... 4 1/4 2 3/4
September 30, 1998..................................... 3 11/16 19/32
December 31, 1998...................................... 1 5/8 13/16
March 31, 1999......................................... 5 3/8 14/16
</TABLE>
We have not paid any dividends on our common stock. We currently intend to
retain any earnings for use in our business, and do not anticipate paying cash
dividends in the foreseeable future.
As of July 31, 1999, there were approximately 340 record holders of our
common stock.
9
<PAGE>
WHERE YOU CAN GET MORE INFORMATION
At your request, we will provide you, without charge, a copy of any
exhibits to our registration statement incorporated by reference in this
prospectus. If you want more information, write or call us at:
New Frontier Media, Inc.
5435 Airport Blvd, Suite 100
Boulder, Colorado 80301
Telephone number: (303) 444-0900
Toll Free number: 1-888-875-0632
Facsimile number: (303) 444-0734
Our fiscal year ends on March 31. We furnish our shareholders annual
reports containing audited financial statements and other appropriate reports.
In addition, we are a reporting company and file annual, quarterly and current
reports, proxy statements and other information with the SEC. You may read and
copy any reports, statements or other information we file at the SEC's public
reference room in Washington D.C. You can request copies of these documents,
upon payment of a duplicating fee, by writing to the SEC. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
rooms. Our SEC filings are also available to the public on the SEC Internet site
at http:\\www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to these documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below, which we have already filed with the
SEC, and any future filings we make with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until the selling shareholders
sell all of the securities offered by this prospectus.
<TABLE>
<CAPTION>
New Frontier Sec Filings (File No. 0-23697) Period
----------------------------------------------------------------- ----------------
<S> <C>
Year ended
Annual Report on Form 10KSB/A March 31, 1999
</TABLE>
This prospectus is part of a registration statement we filed with the SEC.
You should rely on the information incorporated by reference or provided in
this prospectus. We have not authorized anyone to provide you with different
information. We are not making an offer of these securities in any state where
the offer is not permitted. You should not assume that the information in this
prospectus or the documents incorporated by reference is accurate as of any date
other than the date on the front of this prospectus or those documents.
REGISTRATION RIGHTS
In connection with our private placement of 2,610,000 shares of common
stock on March 5, 1999 and pursuant to the terms of sixteen (16) subscription
agreements dated as of March 5, 1999, by and between New Frontier Media and each
of the selling stockholders, we are obligated to use our best efforts to cause
this registration statement to become effective by August 5, 1999. We are
further obligated to register and qualify the registerable shares under such
state securities laws as the selling stockholders may reasonably request. We
will bear the reasonable expenses of the registration and qualification of the
shares under the Securities Act and state securities laws other than any
underwriting discounts and commissions and the expenses of counsel for the
selling stockholders.
If the registration statement is not effective by August 5, 1999, then New
Frontier Media must make payments to the selling stockholders in such amounts
and at such times as are determined pursuant to Section 5(b)(iii) of the
subscription agreements, which states that the amount to be paid by us to the
selling stockholders shall be equal to five (5%) percent per month of the
purchase price paid by the selling stockholders for the common stock. Thus, if
the registration statement is not effective by
10
<PAGE>
August 5, 1999, then for the period from August 5, 1999 to September 5, 1999, we
must pay to the selling stockholders a penalty of $261,000. If the registration
statement still is not effective on September 5, 1999, then for the period from
September 5, 1999 to October 5, 1999, we must pay to the selling stockholders an
additional penalty of $261,000, and so on.
USE OF PROCEEDS FROM SALE OF COMMON STOCK
None of the proceeds from the sale of the common stock registered under
this prospectus will accrue to New Frontier.
Through private placement, New Frontier has obtained $5,220,000 of
financing from the sale of 2,610,000 shares of common stock at a price of $2.00
per share, exclusive of fees and other expenses related to this sale.
We have used $1,518,872 of the proceeds to repay $1,485,000 principal
amount of short-term indebtedness incurred to finance our business operations,
of which $700,000 did not bear interest, $700,000 bore interest at 20% per annum
and $85,000 bore interest at 8.5%. The balance of the proceeds of the sale of
the common stock was used to pay for monthly transponder, uplinking and call
center expenses, payroll, annual fees for satellite activation access,
receiver/decoder equipment purchases, content licensing fees, legal and
professional fees, as well as other working capital expenditures.
SELLING STOCKHOLDERS AND PLAN OF DISTRIBUTION
The selling stockholders whose shares of common stock are being registered
hereunder are: Robertson Stephens Diversified Cash Fund, Anglo Irish Bank Corp.
plc, Alderwood Securities Limited, Cheltenham Securities Ltd., Boston Securities
Australia Limited, Hathaway Partners Investment L.P., Special Situations Private
Equity Fund L.P., Talisman Capital Opportunity Fund Ltd., Talisman Capital Inc.,
Zeke, L.P., August C. Schultes and Mark S. Alsentzer, as tenants in common, Ben
Hasten, Mark Hess, and Raymond Martine.
Robertson Stephens is a Massachusetts corporation with a principal place of
business at 555 California Street, Suite 2600, San Francisco, California 94104.
Anglo Irish is an Irish corporation with a principal place of business at
18/21 St. Stephens Grove, Dublin 2, Ireland.
Alderwood is a British Virgin Islands corporation with a principal place of
business at c/24 Bd. Princess Charlotte, Monaco.
Cheltenham is an English corporation with a principal place of business at
Westhead House, Wigan Road Lathom, Ormskire Lancashire L406JN England.
Boston is an Australian corporation with a principal place of business at
400 Upper Toyan Drive, Kentfield, Australia 94924.
Hathaway is a Connecticut corporation with a principal place of business at
119 Rowayton Avenue, Rowayton, Connecticut 06853.
Special Situations is a New York limited partnership with a principal place
of business at 153 East 53rd Street, New York, New York 10022.
Talisman is a British Virgin Islands corporation with a principal place of
business at 16101 La Grande Drive, Suite 100, Little Rock, Arkansas 72223.
TCI is a British Virgin Islands corporation with a principal place of
business at 16101 La Grande Drive, Suite 100, Little Rock, Arkansas 72223.
Zeke is a Delaware corporation with a principal place of business at 1235
Westgates Drive, Borogn, Pennsylvania 19312.
11
<PAGE>
Schultes and Alsentzer are individuals with an address at 101 Jessup Road,
Thorofare, New Jersey 08086.
Hasten is an individual with an address at 366 Elm Street, Denver, Colorado
80220.
Hess is an individual with an address at 4311 Down Point Lane, Windermere,
Florida 34786.
Martine is an individual with an address at 8 Kensington Court Place,
London W85BT England.
No selling stockholder has any affiliation with New Frontier Media or its
officers, directors, promoters or principal shareholders.
Neither Anglo Irish, Alderwood, Cheltenham, Boston nor Martine has a
domestic agent for service of process. It may be difficult for United States
investors to effect service within the United States upon Martine or Anglo
Irish, Alderwood, Cheltenham and/or Boston and their respective officers and
directors, or to realize in the United States upon judgments rendered against
Martine or Anglo Irish, Alderwood, Cheltenham and/or Boston and their respective
officers and directors by courts of the United States predicated upon civil
liabilities under the Securities Act of 1933 or state securities law.
New Frontier has agreed to register the public offering of the selling
stockholders' shares of common stock under the Securities Act and to pay all
expenses in connection with such registration, other than brokerage commissions
and discounts in connection with the sale of the common stock and the expenses
of counsel.
The following table sets forth the names of the selling stockholders, the
number of shares of common stock owned beneficially by each of the selling
stockholders as of March 31, 1999, the number of shares which may be offered for
resale pursuant to this prospectus and the number of shares of common stock
owned beneficially by each of the selling stockholders after the offering.
The information included below is based upon information provided by the
selling stockholders. Because the selling stockholders may offer all, some or
none of their common stock, no definitive estimate as to the number of shares
that will be held by the selling stockholders after such offering can be
provided and the following table has been prepared on the assumption that all
shares of common stock offered under this prospectus will be sold.
12
<PAGE>
<TABLE>
<CAPTION>
SHARES OF SHARES OF
COMMON STOCK SHARES OF COMMON STOCK
BENEFICIALLY COMMON BENEFICIALLY
OWNED PRIOR TO STOCK BEING OWNED AFTER
NAME OF SELLING STOCKHOLDER (1) OFFERING(2) OFFERED OFFERING(3) PERCENT (4)
- ------------------------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Robertson Stephens Diversified
Cash Fund.................... 500,000 500,000 0 0%
Anglo Irish Bank Corp. plc..... 20,000 20,000 0 0
Alderwood Securities Limited... 650,000 650,000 0 0
Cheltenham Securities Ltd...... 25,000 25,000 0 0
Boston Securities Australia
Limited...................... 25,000 25,000 0 0
Hathaway Partners Investment
L.P.......................... 50,000 50,000 0 0
Special Situations Private
Equity Fund L.P.............. 300,000 300,000 0 0
Talisman Capital Opportunity
Fund Ltd..................... 225,000 225,000 0 0
Talisman Capital Inc........... 25,000 25,000 0 0
Zeke, L.P...................... 200,000 200,000 0 0
August C. Schultes and Mark S.
Alsentzer.................... 500,000 500,000 0 0
Ben Hasten..................... 25,000 25,000 0 0
Mark Hess...................... 25,000 25,000 0 0
Raymond Martine................ 40,000 40,000 0 0
---------- ---------- -- --
Total.......................... 2,610,000 2,610,000 0 0
</TABLE>
- ------------------
(1) Each of the parties listed has sole voting and investment power with respect
to all shares of common stock indicated.
(2) Beneficial ownership is calculated in accordance with Rule 13d-3(d) under
the Exchange Act.
(3) Assumes the sale of all shares offered by this prospectus.
(4) Based upon 12,539,517 shares outstanding.
The selling stockholders' shares of common stock may be offered and sold as
market conditions permit, provided that a registration statement covering the
shares is effective at the time of such offer and/or sale. Under Section
10(a)(3) of the Securities Act of 1933, when a prospectus is used more than nine
months after the effective date of the registration statement, the information
contained therein must be as of a date not more than 16 months prior to its use.
The selling stockholders' shares of common stock may be offered and sold in
the over-the-counter market, or otherwise, at prices and terms then prevailing
or at prices related to the then-current market price, or in privately
negotiated transactions. The selling stockholders' shares of common stock may be
sold by one or more of the following methods:
* a block trade in which a broker or dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
* purchases by a broker or dealer as principal and resale by such broker
or dealer for its accounts pursuant to this prospectus;
* ordinary brokerage transactions and transactions in which the broker
solicits purchases; and
* transactions between sellers and purchasers without a broker or dealer.
In effecting sales, brokers or dealers engaged by selling stockholders may
arrange for other brokers or dealers to participate. These brokers or dealers
may receive commissions or discounts from selling stockholders in amounts to be
negotiated. These brokers and dealers and any other participating
13
<PAGE>
brokers and dealers may be deemed to be "underwriters" within the meaning of the
Securities Act, in connection with these sales.
DESCRIPTION OF SECURITIES
As of the date of this prospectus, there are approximately 340 holders of
record of New Frontier Media's common stock. We are currently authorized to
issue 50,000,000 shares of our common stock, par value $.0001 per share, and
5,000,000 shares of its preferred stock, par value $.10 per share. As of the
date of this prospectus, New Frontier Media has 12,539,517 shares of its common
stock, and no shares of its preferred stock, issued and outstanding. There are
also options and warrants to purchase an additional 5,702,166 shares of our
common stock issued and outstanding.
COMMON STOCK
Each holder of shares of common stock is entitled to one vote per share on
all matters to be voted on by shareholders. The holders of common stock are
entitled to receive dividends, if any, as may be declared from time to time by
the board of directors out of funds legally available therefor and, in the event
of liquidation, dissolution or winding-up of New Frontier Media, to share
ratably in all assets available for distribution, subject to the rights of the
holders of any preferred stock as described below.
Upon the liquidation, dissolution or winding up of New Frontier Media, the
holders of shares of common stock would be entitled to share pro rata in the
distribution of all of New Frontier Media's assets remaining available for
distribution after satisfaction of all its liabilities and the payment of the
liquidation preference of any outstanding preferred stock. The holders of common
stock have no preemptive or conversion rights. All shares of common stock
outstanding as of the date of this prospectus are fully paid and are not subject
to further calls or assessments by the company. There are no redemption or
sinking fund provisions applicable to the common stock.
PREFERRED STOCK
Our Articles of Incorporation, as amended, authorize the issuance of up to
5,000,000 shares of preferred stock. The board of directors is authorized,
without further shareholder action, to issue such shares in one or more series,
and to fix the rights, preferences, privileges and restrictions thereof,
including dividend rates, conversion rights, voting rights, terms of redemption,
redemption prices, amounts payable upon liquidation and the number of shares
constituting any series or the designation of such series. If such preferred
stock is issued, it will rank senior to our common stock in respect of rights to
receive dividends and to participate in distributions or payments in the event
of an liquidation, dissolution or winding up of New Frontier Media. The issuance
of preferred stock may have the effect of delaying, deferring, discouraging or
preventing a third party from acquiring a majority of the outstanding voting
stock of New Frontier Media or other change in control of New Frontier Media
without further action by the shareholders, and may adversely affect the voting
and other rights of the holders of the common stock, including the loss of
voting control to others. The board of directors does not at present intend to
seek shareholder approval prior to issuing any such preferred stock, unless
required to do so by law.
DIVIDEND POLICY
We have not paid any cash or other dividends on our common stock since our
inception and do not anticipate paying any such dividends in the foreseeable
future. We intend to retain any earnings for use in our operations and to
finance the expansion of its business.
LEGAL MATTERS
The legality of the Shares offered hereby has been passed upon for us by
Thorburn, Sakol & Throne of Denver, Colorado.
14
<PAGE>
EXPERTS
The financial statements of New Frontier Media as of March 31, 1999 and
1998 and for the years ended March 31, 1999 and 1998, incorporated by reference
in this prospectus from the Annual Report, have been incorporated herein in
reliance on the report of Spicer, Jeffries & Co., independent certified public
accountants, given on the authority of said firm as experts in accounting and
auditing.
15
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary................................................. 3
The Offering....................................................... 3
Recent Events...................................................... 3
Risk Factors....................................................... 3
Indemnification.................................................... 8
Selected Financial and Operating Data.............................. 8
Market Price of Common Stock....................................... 9
Where You Can Get More Information................................. 10
Registration Rights................................................ 10
Use of Proceeds from Sale of Common Stock.......................... 11
Selling Stockholders and Plan of Distribution...................... 11
Description of Securities.......................................... 14
Dividend Policy.................................................... 14
Legal Matters...................................................... 14
Experts............................................................ 15
</TABLE>
<PAGE>
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Filing fee under the Securities Act of 1933........................ $ 3,055.93
Blue Sky qualification fees and expenses (1)....................... 1,000
Printing and engraving (1)......................................... 1,000
Legal Fees (1)..................................................... 25,000
Accounting Fees (1)................................................ 3,000
Miscellaneous (1).................................................. 1,944.07
Total......................................................... $ 35,000
</TABLE>
- ------------------
(1) Estimates
ITEM 15. 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) distributions 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 modification 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 or 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 judgement in its favor 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. 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.
II-1
<PAGE>
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 disinterested 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.
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 unreasonably 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 16. EXHIBITS THE EXHIBITS ATTACHED HERETO ARE AS FOLLOWS:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- ------------------------------------------------------------------------------
<C> <S>
3.01 --Articles of Incorporation of Company, with Amendment*
3.02 --First Amended Bylaws of Company*
4.01 --Form of Common Stock Certificate*
5.01 --Opinion of Thorburn, Sakol & Throne, counsel to the Company, concerning the
legality of the securities being registered****
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 --Call Center Interim Service Agreement between the Company and 1248663
Ontario Inc.*
10.07 --Settlement and Stock and Warrant Transfer Agreement, dated June 16, 1998, by
and among the Company, BIG, Quarto Holdings, Inc., New Frontier Media,
Inc., Mark Kreloff, Michael Weiner, Andrew Brandt and Scott Wussow**
10.08 --Form of Securities Purchase Agreement, dated March 5, 1999, by and between
the Company and each of the Selling Stockholders.****
10.09 --Employment Agreement, dated December 22, 1998, by and between the Company
and Mark Kreloff.****
10.10 --Employment Agreement, dated December 22, 1998, by and between the Company
and Michael Weiner.****
10.11 --Office Lease Agreement, dated August 12, 1998, for premises at 5435 Airport
Boulevard, Boulder CO.***
10.12 --Content License Agreement with Pleasure Productions LLC****
21.01 --Subsidiaries of the Company***
23.01 --Consent of Spicer, Jefferies & Co.*****
23.02 --Consent of Thorburn, Sakol & Throne, counsel to the Company (included in
their opinion filed as Exhibit 5.01).****
27.01 --Financial Data Schedule.***
</TABLE>
- ------------------
* Incorporated by reference to the Company's Registration Statement on Form
SB-2 (File No. 333-35337)
** Incorporated by reference to the Company's Annual Report on Form 10-KSB
for the year ended March 31, 1998.
II-2
<PAGE>
*** Incorporated by reference to the Company's Annual Report on Form 10-KSB
for the year ended March 31, 1999.
**** Previously Filed.
***** Filed with this Registration Statement.
ITEM 17. 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 appropriate 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;
and
(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.
II-3
<PAGE>
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 S-3 and has caused this Amendment No. 3 to its
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in Boulder, Colorado on August 10, 1999.
NEW FRONTIER MEDIA, INC.
By: /s/ Mark H. Kreloff
___________________________________
Mark H. Kreloff
President
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- ---------------------------- ----------------------
<C> <S> <C>
/s/ MARK H. KRELOFF Chairman, Chief Executive August 10, 1999
- ---------------------------------------- Officer and President
Mark H. Kreloff
/s/ MICHAEL WEINER Executive Vice President, August 10, 1999
- ---------------------------------------- Secretary, Treasurer and
Michael Weiner Director
/s/ KARYN MILLER Chief Financial Officer August 10, 1999
- ---------------------------------------- (Principal Accounting
Karyn Miller Officer)
/s/ KOUNG Y. WONG Director August 10, 1999
- ----------------------------------------
Koung Y. Wong
/s/ EDWARD J. BONN Director August 10, 1999
- ----------------------------------------
Edward J. Bonn
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- ------------------------------------------------------------------------------
<C> <S>
3.01 --Articles of Incorporation of Company, with Amendment*
3.02 --First Amended Bylaws of Company*
4.01 --Form of Common Stock Certificate*
5.01 --Opinion of Thorburn, Sakol & Throne, counsel to the Company, concerning the
legality of the securities being registered****
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 --Call Center Interim Service Agreement between the Company and 1248663
Ontario Inc.*
10.07 --Settlement and Stock and Warrant Transfer Agreement, dated June 16, 1998, by
and among the Company, BIG, Quarto Holdings, Inc., New Frontier Media,
Inc., Mark Kreloff, Michael Weiner, Andrew Brandt and Scott Wussow**
10.08 --Form of Securities Purchase Agreement, dated March 5, 1999, by and between
the Company and each of the Selling Stockholders.****
10.09 --Employment Agreement, dated December 22, 1998, by and between the Company
and Mark Kreloff.****
10.10 --Employment Agreement, dated December 22, 1998, by and between the Company
and Michael Weiner.****
10.11 --Office Lease Agreement, dated August 12, 1998, for premises at 5435 Airport
Boulevard, Boulder, CO.***
10.12 --Content License Agreement with Pleasure Productions LLC****
21.01 --Subsidiaries of the Company**
23.01 --Consent of Spicer, Jefferies & Co.*****
23.02 --Consent of Thorburn, Sakol & Throne, counsel to the Company (included in
their opinion filed as Exhibit 5.01).****
27.01 --Financial Data Schedule.***
</TABLE>
- ------------------
* Incorporated by reference to the Company's Registration Statement on Form
SB-2 (File No. 333-35337)
** Incorporated by reference to the Company's Annual Report on Form 10-KSB
for the year ended March 31, 1998.
*** Incorporated by reference to the Company's Annual Report on Form 10-KSB
for the year ended March 31, 1999.
**** Previously Filed.
***** Filed with this Registration Statement.
II-5
EXHIBIT 23.01
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement, Amendment No. 3, on Form S-3 of New Frontier Media, Inc. and
Subsidiaries of our report dated June 9, 1999, accompanying the consolidated
financial statements of New Frontier Media, Inc. and Subsidiaries for the years
ended March 31, 1999 and 1998 which is part of the Annual Report on Form 10-KSB,
and to the reference to us under the heading "Experts" in such registration
statement.
SPICER, JEFFRIES & CO.
Denver, Colorado
August 10, 1999
