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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 13, 1998
REGISTRATION NO. 333-42017
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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SOURCE MEDIA, INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 13-3700438
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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4825
(Primary Standard Industrial Classification Code Number)
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5400 LBJ FREEWAY, SUITE 680 TIMOTHY P. PETERS
DALLAS, TEXAS 75240 5400 LBJ FREEWAY, SUITE 680
(Address, including zip code, and DALLAS, TEXAS 75240
telephone number, including area code, (972) 701-5400
of Registrant's principal executive offices) (Name, address, including zip code, and telephone
number, including area code, of agent for service)
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Copies to:
MICHAEL L. BENGTSON
MARK C. GUNNIN
GRANT C. LIGHTLE
THOMPSON & KNIGHT, P.C.
98 SAN JACINTO BOULEVARD
SUITE 1200
AUSTIN, TEXAS 78701
(512) 469-6100
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
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.
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EXPLANATORY NOTE
The sole purpose of this Amendment No. 2 is to re-file Exhibit 23.1, the
Edgar copy of which contained an error.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with Section 102(b)(7) of the Delaware General Corporation
Law ("DGCL"), the Company's Certificate of Incorporation includes a provision
that eliminates, to the fullest extent permitted by law, the personal liability
of members of its Board of Directors to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director. Such provision does
not eliminate or limit the liability of a director (1) for any breach of a
director's duty of loyalty to the Company or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of a law, (3) for paying an unlawful dividend or approving an illegal
stock purchase or redemption (as provided in Section 174 of the DGCL) or (4) for
any transaction from which the director derived an improper personal benefit.
Section 145 of the DGCL permits a corporation to indemnify any director or
officer of the corporation against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with any action, suit or proceeding brought by reason of the fact
that such person 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, if such person acted in good faith and in a
manner that he reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to any criminal action or proceeding, if he
had no reasonable cause to believe his conduct was unlawful. In a derivative
action (i.e., one brought by or in the right of the corporation),
indemnification may be made for expenses actually and reasonably incurred by any
officer or director in connection with the defense or settlement of such an
action or suit if such person acted in good faith and in a manner that he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the corporation unless and only to the extent that the court in which such
action or suit was brought shall determine that such person is fairly and
reasonably entitled to indemnity for such expenses despite such adjudication of
liability.
The DGCL also permits a corporation to purchase and maintain insurance on
behalf of any person who is or was a director or officer against any liability
asserted against him and incurred by him in such capacity, or arising out of his
status as such, whether or not the corporation has the power to indemnify him
against that liability under Section 145 of the DGCL.
Certain provisions of the Company's Certificate of Incorporation and Bylaws
generally provide for the indemnification of and advancement of litigation
expenses to the Company's directors and officers and such other persons
designated by the Board of Directors of the Company as entitled to the benefits
of indemnification against all liabilities, losses and expenses incurred in
connection with any claim, action, suit or proceeding in which any of them
become involved by reason of their service rendered to the Company or, at its
request, to another entity; provided, however, that no such right to
indemnification shall exist with respect to an action brought by an indemnitee
against the Company unless certain conditions set forth in such provisions are
satisfied. The provisions of the Company's Certificate of Incorporation and
Bylaws are not exclusive of any other indemnification rights to which an
indemnitee may be entitled, whether by contract or otherwise. The Company may
also purchase liability insurance on behalf of its directors and officers,
whether or not it would have the obligation or power to indemnity any of them
under the terms of its Certificate of Incorporation.
In addition, each of the control persons, officers and directors of each of
the Subsidiary Guarantors is generally provided indemnification to the fullest
extent allowed by the law of such Subsidiary Guarantor's respective jurisdiction
of organization.
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ITEM 21(A). EXHIBITS
The information required by this Item 21(a) is set forth in the Index to
Exhibits accompanying this Registration Statement and is incorporated herein by
reference.
ITEM 22. UNDERTAKINGS
The undersigned Co-Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of an 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 thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Co-Registrants pursuant to the provisions described under Item 20 above, or
otherwise, the Co-Registrants have been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. If a claim for indemnification against such
liabilities (other than the payment by the Co-Registrants of expenses incurred
or paid by a director, officer or controlling person of the Co-Registrants 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 Co-Registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The undersigned Co-Registrants hereby undertake to respond to requests for
information that is incorporated by reference into the Prospectus pursuant to
Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in the documents
filed subsequent to the effective date of the Registration Statement when it
became effective.
The undersigned Co-Registrants undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No. 2 to Registration Statement to be signed on
its behalf of the undersigned, thereunto duly authorized, in Dallas, Texas, on
the 13th day of February, 1998.
SOURCE MEDIA, INC.
BY: *
----------------------------------------
TIMOTHY P. PETERS
Chairman of the Board
and Chief Executive Officer
SOURCE MEDIA, INC.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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* Chief Executive Officer February 13, 1998
- ----------------------------------------------------- and Chairman of the
Timothy P. Peters Board (principal
executive officer)
* Chief Financial Officer February 13, 1998
- ----------------------------------------------------- and Treasurer
W. Scott Bedford (principal financial
and accounting
officer)
* President and Director February 13, 1998
- -----------------------------------------------------
John J. Reed
* Director February 13, 1998
- -----------------------------------------------------
David L. Kuykendall
* Director February 13, 1998
- -----------------------------------------------------
Michael J. Marocco
* Director February 13, 1998
- -----------------------------------------------------
James L. Greenwald
* Director February 13, 1998
- -----------------------------------------------------
Robert H. Alter
* Director February 13, 1998
- -----------------------------------------------------
Robert J. Cresci
* Director February 13, 1998
- -----------------------------------------------------
Barry Rubenstein
*By: /s/ MARYANN WALSH
------------------------------------------------
Maryann Walsh
attorney-in-fact
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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3.1 -- Restated Certificate of Incorporation, as amended (filed
as Exhibit 3.1 to the Company's Registration Statement on
Form S-1, as amended (No. 33-97564), and incorporated
herein by reference).
3.2 -- Bylaws (filed as Exhibit 3.2 to HBAC's Registration
Statement on Form S-1, as amended (No. 33-62606), and
incorporated herein by reference).
4.1 -- Form of Common Stock Certificate (filed as Exhibit 4.1 to
the Company's Registration Statement on Form S-1 (No.
33-97564), and incorporated herein by reference).
4.2 -- Certificate of Designation for Senior PIK Preferred Stock
(filed as Exhibit 4.2 to the Company's current report on
Form 8-K dated October 30, 1997, and incorporated herein
by reference).
4.3 -- Indenture dated as of October 30, 1997 between Source
Media, Inc. and U.S. Trust Company of Texas, N.A. (filed
as Exhibit 4.1 to the Company's current report on Form
8-K dated October 30, 1997, and incorporated herein by
reference).
4.4 -- Warrant Agreement dated as of October 30, 1997 between
Source Media, Inc. and ChaseMellon Shareholder Services
(filed as Exhibit 4.3 to the Company's current report on
Form 8-K dated October 30, 1997, and incorporated herein
by reference).
5.1 -- Opinion of Thompson & Knight, P.C.
10.1 -- Master Agreement between IT Network, Inc. and Pacific
Bell Directory, dated December 16, 1992, as amended
(filed as Exhibit 10.18 to HBAC's Registration Statement
on Form S-4 (No. 33-90482), and incorporated herein by
reference).
10.2 -- Master AudioText Agreement between IT Network, Inc. and
BellSouth, dated May 1, 1993 (filed as Exhibit 10.22 to
HBAC's Registration Statement on Form S-4 (No. 33-90482),
and incorporated herein by reference).
10.3 -- Sales Agency Agreement by and between US West Marketing
Resources Group, Inc. and IT Network, Inc., dated July 6,
1995 (filed as Exhibit 10.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995,
and incorporated herein by reference).
10.4 -- Development and Licensing Agreement dated as of April 1,
1995 between IT Network, Inc., Source Media, Inc., ICT
Inc., Cable Share International Inc., ICT (U.S.) Limited
and ICT B.V. (filed as Exhibit 10.22 to the Company's
Annual Report on Form 10-K for the Year Ended December
31, 1995, and incorporated herein by reference).
10.5 -- Interactive Television License Agreement between IT
Network, Inc., ICT (U.S.) Limited and ICT Inc., dated
June 11, 1992 (filed as Exhibit 10.40 to HBAC's
Registration Statement on Form S-4 (No. 33-90482), and
incorporated herein by reference).
10.6 -- Interactive Channel Distribution Agreement dated November
16, 1995 between IT Network, Inc. and Cablevision Systems
Corporation (filed as Exhibit 99.2 to the Company's
Current Report on Form 8-K filed January 30, 1996, and as
amended on March 19, 1996, and incorporated herein by
reference).
10.7 -- Interactive Cable Agreement between IT Network, Inc. and
Sammons Communications, Inc., dated June 4, 1993 (filed
as Exhibit 10.53 to HBAC's Registration Statement on Form
S-4 (No. 33-90482), and incorporated herein by
reference).
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EXHIBIT
NUMBER DESCRIPTION
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10.8 -- Contribution Agreement between National Research Council
Canada and ICT Inc. (filed as Exhibit 10.54 to HBAC's
Registration Statement on Form S-4 (No. 33-90482), and
incorporated herein by reference).
10.9 -- Letter of Understanding between IT Network, Inc. and
Pacific Bell Directory dated August 25, 1994 (filed as
Exhibit 10.55 to HBAC's Registration Statement on Form
S-4 (No. 33-90482), and incorporated herein by
reference).
10.10 -- Stock Purchase Warrant dated April 13, 1996 between
Northstar Advantage High Total Return Fund and the
Company (filed as Exhibit 10.3 to the Company's Quarterly
Report on Form 10-Q for the Quarter Ended March 31, 1996,
and incorporated herein by reference).
10.11 -- Sales Agency Agreement dated May 20, 1996 between The
Reuben H. Donnelley Corporation and IT Network, Inc.
(filed as Exhibit 10.1 to the Company's Quarterly Report
on Form 10-Q for the Quarter Ended June 30, 1996, and
incorporated herein by reference).
10.12 -- License Agreement dated June 6, 1996 between WinStar New
Media Co., Inc. and the Company (filed as Exhibit 10.2 to
the Company's Quarterly Report on Form 10-Q for the
Quarter Ended June 30, 1996, and incorporated herein by
reference).
10.13 -- Charter Affiliation Agreement between Century
Communications Corporation and the Company (filed as
Exhibit 10.1 to the Company's Current Report on Form 8-K
filed April 23, 1996, and incorporated herein by
reference).
10.14 -- Services Agreement dated October 21, 1996 between The
Reuben H. Donnelley Corporation and IT Network, Inc.
(filed as Exhibit 10.1 to the Company's Quarterly Report
on Form 10-Q for the Quarter Ended September 30, 1996,
and incorporated herein by reference).
10.15 -- Arrangement Agreement dated November 13, 1996 between the
Company and ICT. (filed as Exhibit 10.18 to the Company's
Registration Statement on Form S-1 (No. 33-16883),
subsequently withdrawn, and incorporated herein by
reference).
10.16 -- Form of Plan of Arrangement. (filed as Exhibit 10.19 to
the Company's Registration Statement on Form S-1 (No.
33-16883), subsequently withdrawn, and incorporated
herein by reference).
10.17 -- Stock Purchase Warrant dated as of April 9, 1996 between
the Company and Northstar (filed as Exhibit 10.29 to the
Company's Annual Report on Form 10-K for the Year Ended
December 31, 1996, and incorporated herein by reference).
10.18 -- Amended and Restated Stock Purchase Warrant dated as of
April 9, 1997 between the Company and Northstar (filed as
Exhibit 10.30 to the Company's Annual Report on Form 10-K
for the Year Ended December 31, 1996, and incorporated
herein by reference).
10.19 -- Stock Purchase Warrant dated as of April 9, 1997 between
the Company and Zeneca (filed as Exhibit 10.31 to the
Company's Annual Report on Form 10-K for the Year Ended
December 31, 1996, and incorporated herein by reference).
10.20 -- Stock Purchase Warrant dated as of April 9, 1997 between
the Company and Delaware (filed as Exhibit 10.32 to the
Company's Annual Report on Form 10-K for the Year Ended
December 31, 1996, and incorporated herein by reference).
10.21 -- Stock Purchase Warrant dated as of April 9, 1997 between
the Company and ICI (filed as Exhibit 10.33 to the
Company's Annual Report on Form 10-K for the Year Ended
December 31, 1996, and incorporated herein by reference).
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EXHIBIT
NUMBER DESCRIPTION
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10.22 -- Stock Purchase Warrant dated as of April 9, 1997 between the Company and McConnell
(filed as Exhibit 10.34 to the Company's Annual Report on Form 10-K for the Year Ended
December 31, 1996, and incorporated herein by reference).
10.23 -- Amended and Restated Registration Rights Agreement dated as of April 9, 1997 among the
Company and Northstar, Zeneca, McConnell, ICI and Delaware (filed as Exhibit 10.35 to
the Company's Annual Report on Form 10-K for the Year Ended December 31, 1996, and
incorporated herein by reference).
10.24 -- Asset Purchase Agreement dated September 23, 1997 between IT Network, Inc. and Brite
Voice Systems, Inc. (filed as Exhibit 2.1 to the Company's current report on Form 8-K
dated October 30, 1997, and incorporated herein by reference).
10.25 -- Amendment dated October 7, 1997 between IT Network, Inc. and Brite Voice Systems, Inc.
to Asset Purchase Agreement dated September 23, 1997 between IT Network, Inc. and Brite
Voice Systems, Inc. (filed as Exhibit 2.2 to the Company's current report on Form 8-K
dated October 30, 1997, as amended, and incorporated herein by reference).
10.26 -- Asset Purchase Agreement dated September 30, 1997 between Source Media, Inc. and IT
Network, Inc. and Voice News Network, Inc. (filed as Exhibit 2.3 to the Company's
current report on Form 8-K dated October 30, 1997, and incorporated herein by
reference).
10.27 -- Preferred Stock Registration Rights Agreement dated as of October 30, 1997 between
Source Media, Inc. and Natwest Capital Markets Limited and Prudential Securities
Incorporated. (filed as Exhibit 10.2 to the Company's current report on Form 8-K dated
October 30, 1997, and incorporated herein by reference).
10.28 -- Exchange and Registration Rights Agreement for Senior Secured Notes dated as of October
30, 1997 between Source Media, Inc. and certain of its subsidiaries and Natwest Capital
Markets Limited and Prudential Securities Incorporated (filed as Exhibit 10.1 to the
Company's current report on Form 8-K dated October 30, 1997, and incorporated herein by
reference).
10.29 -- Form of Guarantee for domestic subsidiaries.
10.30 -- Form of Guarantee for foreign subsidiaries.
21 -- Subsidiaries.
23.1* -- Consent of Ernst & Young LLP.
23.2 -- Consent of Arthur Andersen LLP.
23.3 -- Consent of Price Waterhouse LLP.
23.4 -- Consent of Thompson & Knight, P.C. (included as part of Exhibit 5.1).
24.1 -- Power of Attorney.
27 -- Financial Data Schedule.
99.1 -- Form of Letter of Transmittal.
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* Filed herewith.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report dated February 7, 1997 (except for Note
5 and the last paragraph of Note 6, for which the date is April 9, 1997, and the
first paragraph of Note 3, for which the date is September 9, 1997), in the
Registration Statement (Form S-4) and related Prospectus of Source Media, Inc.
for the registration of its 13 1/2% Senior PIK Preferred Stock, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
February 11, 1998
