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As Filed with the Securities and Exchange Commission on June 20, 1997
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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UNAPIX ENTERTAINMENT, INC.
(Exact name of Registrant as specified in its charter)
Delaware 95-4404537
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(state or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
200 Madison Avenue
New York, New York 10016
(212) 252-7600
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
David M. Fox
President
200 Madison Avenue
New York, New York 10016
(212) 252-7600
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
With a copy to:
Lee A. Albanese, Esq. Michael R. Epps, Esq.
V. Carl Walker, Esq. Unapix Entertainment, Inc.
St. John & Wayne 200 Madison Avenue
Heron Tower - 70 East 55th Street New York, New York 10016
New York, New York 10022
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
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, other than securities offered only in connection with dividend or interest
reinvestment plans, 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. [ ]
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<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of each Class of Securities to be Registered Registered Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 1,605,000 $ 4.50 (1) $ 7,222,500 $ 2,188.63
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Common Stock, par value $.01 per share 722,250 6.00 (1) 4,333,500 1,313.18
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Common Stock, par value $.01 per share 295,000 4.50 (1) 1,327,500 402.27
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Common Stock, par value $.01 per share 1,089,059 4.44 (1) 4,835,422 1,465.27
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Common Stock, par value $.01 per share 21,000 4.92 (1) 103,320 31.31
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Common Stock, par value $.01 per share 513,666 4.44 (3) 2,280,677 691.11
(2)
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Class B redeemable common stock purchase 156,718 --- (4) --- (4) --- (4)
warrants
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Total Registration Fee -------------------------- ----------- ------------- -------------- 6,091.77
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(1) These shares are to be issued pursuant to the exercise or conversion
of Common Stock derivative securities and the proposed maximum
offering price is computed in accordance with Rule 457(g).
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(2) Consists of shares to be registered for resale by Selling Security
Holders.
(3) Estimated pursuant to Rule 457(c), solely for purposes of calculating
the amount of the registration fee, based upon the average of the high
and low sales prices reported on June 17, 1997, as reported on the
American Stock Exchange.
(4) Pursuant to Rule 457(g), no additional fee is required.
____________________________
Pursuant to Rule 416, there are also being registered such additional shares
of Common Stock as may become issuable pursuant to the anti-dilution
provisions of such securities.
____________________________
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 Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
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PROSPECTUS UNAPIX ENTERTAINMENT, INC.
4,245,975 Shares of Common Stock
156,718 Class B Redeemable Common Stock Purchase Warrants
The securities of Unapix Entertainment, Inc. of (the "Company"), to which
this Prospectus relate include: (i) 3,732,309 shares ("Derivative Shares") of
the Company's common stock, $.01 par value per share (the "Common Stock"), and
9,500 Class B Redeemable Common Stock Purchase Warrants ("Class B Warrants"),
to be issued upon exercise or conversion of certain of the Company's derivative
securities (the "Derivative Securities"), more particularly described in "Plan
of Distribution" (such Class B Warrants issuable upon exercise of Derivative
Securities are referred to as "Derivative Class B Warrants"); (ii) 513,666
shares of Common Stock to be offered by certain persons (see "Selling Security
Holders") that were acquired by them in private placements of such shares in
connection with the acquisition by the Company of Miramar Images, Inc. and the
merger of A Pix Entertainment, Inc., ("A Pix") with and into the Company (the
"Selling Security Holder Shares"); and (iii) 147,218 Class B Warrants (the
"Selling Security Holder Class B Warrants") to be offered by certain persons
(see "Selling Security Holders") that were acquired by them in private
placements in connection with (i) investments in a joint venture to fund the
acquisition by A Pix of distribution rights, (ii) the waiver of certain rights
with respect to an entertainment project, and (iii) services being rendered to
the Company (the Selling Security Holders Shares together with the Selling
Security Holder Class B Warrants are referred to as the "Selling Holder
Securities"; the Derivative Shares, Derivative Class B Warrants together with
the Selling Security Holder Securities are referred to as the "Securities").
Each Class B Warrant expires on June 22, 1998, and entitles the holder to
purchase 1.05 shares of Common Stock for $4.50 (i.e. at an exercise price of
$4.28 per share). The exercise price of the Class B Warrants is subject to
adjustment in certain events pursuant to the antidilution provisions thereof.
The Class B Warrants are redeemable at a price of $.10 per Class B Warrant,
prior to their expiration, provided that (i) prior notice of not less than 30
days is given to the Class B Warrant holders; (ii) the closing high bid price of
the Common Stock on each of the 20 consecutive trading days (or such lesser
number of days with the consent of the underwriter in the Company's initial
public offering, but not fewer than 10 consecutive trading days) ending on the
third day prior to the date on which the Company gives notice has been at least
$5.70; and (iii) Class B Warrant holders shall have exercise rights until the
time and date fixed for redemption.
The Selling Security Holder Securities may be sold from time to time by
the Selling Security Holders, or by pledgees, transferees or other successors
in interest, on the American Exchange (or such other exchange on which the
Securities are listed at the time of sale), or in the over-the-counter market
or otherwise, at prices and on terms then prevailing or at prices related to
the then current market price, or in privately negotiated transactions. See
"Plan of Distribution."
Additionally, this Prospectus has been prepared for use, with the prior
consent of the Company, by certain holders of the Securities who may acquire
the Securities and who may wish to sell such Securities in transactions in
which they may (because of their relationship to the Company) be deemed to be
underwriters within the meaning of the Securities Act of 1933 (the "Act").
This Prospectus also relates to such additional Securities which may be
issuable pursuant to anti-dilution provisions of the Derivative Securities
which Securities are being registered hereby pursuant to Rule 416 promulgated
under the Act.
Other than proceeds equal to the exercise price of certain of the
Derivative Securities when exercised, the Company will receive no cash
proceeds from the distribution of the securities offered hereby. The Common
Stock and the Class B Warrants are primarily traded on the American Stock
Exchange ("AMEX") under the symbols "UPX" and "UPX.WS.B.," respectively. On
June 13, 1997 the closing price for the Common Stock and the Class B Warrants
on the AMEX was $4.4375 and $.875, respectively.
SEE "RISK FACTORS" PAGE 3 FOR CERTAIN MATTERS TO BE
CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1997
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, files
reports, proxy and information statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy and
information statements and other information can be inspected and copied at the
public reference facilities maintained by the Commission at Judiciary Plaza,
Room 1024, 450 Fifth Street N.W., Washington, D.C. 20549; and at the regional
offices of the Commission at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511; and 7 World Trade Center, Suite 1300, New
York, New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission, in Washington, D.C. 20549, at prescribed
rates. In addition, such reports and other information may be electronically
accessed at the Commission's site on the World Wide Web located at
http://www.sec.gov. The Company's Common Stock and Class B Warrants are listed
on the American Stock Exchange, 86 Trinity Place, New York, New York 10006, and
reports, proxy statements and other information filed by the Company can also be
inspected at the office of such exchange.
The Company has filed a Registration Statement on Form S-3 (together with
all amendments thereto referred to herein as the "Registration Statement") under
the Act, with the Commission covering the shares of Common Stock being offered
by this Prospectus. This Prospectus does not contain all the information set
forth or incorporated by reference in the Registration Statement and the
exhibits and schedules relating thereto, certain portions of which have been
omitted as permitted by the rules and regulations of the Commission. For
further information with respect to the Company and the securities offered by
this Prospectus, reference is made to the Registration Statement and the
exhibits and schedules thereto which are on file at the offices of the
Commission and may be obtained upon payment of the fee prescribed by the
Commission, or may be examined without charge at the offices of the Commission.
Statements contained in this Prospectus as to the contents of any contract or
other documents referred to are not necessarily complete, and are qualified in
all respects by such reference.
__________________________
No person is authorized in connection with the offering made by this
Prospectus to give any information or to make any representations not contained
or incorporated by reference in this Prospectus, and any information or
representation not contained or incorporated by reference in this Prospectus
must not be relied upon as having been authorized by the Company. This
Prospectus is not an offer to sell, or a solicitation of an offer to buy, by any
person in any jurisdiction in which it is unlawful for that person to make an
offer or solicitation. Neither the delivery of this Prospectus nor any sale
made under this Prospectus shall, under any circumstance, create any implication
that the information in this Prospectus is correct as of any time subsequent to
the date of this Prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-11976)
pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1996, as filed and as amended.
2. The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1997.
3. The description of the Securities as set forth in a Registration
Statement Form 8-A, as filed with the Commission on July 27, 1995,
together with any amendments or reports for the purpose of updating
such description.
4. A Current Report on Form 8-K for event occurring on March 17, 1997.
5. All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15 of the Exchange Act prior to the termination of
this offering shall be deemed to be incorporated by reference in this
Prospectus and to be a part of this Prospectus from the date of filing
thereof.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently
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filed document which also is or is deemed to be incorporated by reference
herein modified or superseded such statement. Any such statement so modified
or superseded shall not be deemed, except as modified or superseded, to
constitute part of the registration statement or this Prospectus for purposes
of the Act.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of that person, a copy of
all documents incorporated by reference into this Prospectus, other than
exhibits to those documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests for such documents should be
directed to Unapix Entertainment, Inc., 200 Madison Avenue, New York, New York
10016, Attention: Michael R. Epps, General Counsel (telephone (212) 252-7600).
THE COMPANY
The Company is primarily a worldwide licensor and distributor of feature
films and television programs, principally for the television market (including
free and pay television, cable and satellite) and the home video market
(including video cassette and laser discs). The Company's current "library" of
films and programs includes feature films, documentaries, children's
programming, educational and special interest programming, musical concerts,
comedy shows, adventure series, and classic films and serials (the
"Properties").
Prior to 1993, the Company primarily focused on the international
distribution of older Properties. During 1993, the Company expanded its
activities to exploit the increasing worldwide demand for television programming
and home video products resulting from the fractionalization of the television
viewing audience. A shift has occurred from mass audiences dominated by a few,
free broadcast networks to niche audiences served by diverse cable, satellite
and free television services, home video cassettes and other products.
In order to capitalize on this evolution, during 1993 the Company
implemented a plan to expand and diversify the Company's business into areas of
domestic and foreign licensing, and domestic home video cassettes and laser disc
distribution of newer Properties, including properties that are designed to
appeal to a specific segmented audience. The Company has continued its
expansion and diversification in each subsequent year by adding a significant
number of newer Properties to its Library.
In March 1997, the Company completed the acquisition of all of the capital
stock of Miramar Images, Inc. ("Miramar"), which produces and distributes music
videos and audio recordings primarily for the New Adult Contemporary Market,
i.e., products that are designed principally to appeal to individuals over the
age of 25.
Currently, in addition to Miramar, the Company's operations consist
principally of the following: the distribution of video cassettes to domestic
home video rental stores via sales to wholesalers, which is conducted by A Pix
Entertainment ("A Pix"); the distribution of Properties from the Company's
library to foreign broadcasters and home video rental companies, which is
conducted under the name of Unapix International; the licensing of Properties to
the North American television market, which is conducted under the name Unapix
North America; and the marketing of products that are intended to be purchased
by consumers which is conducted by Unapix Consumer Products. During 1996,
approximately 56% of the Company's revenues were attributable to A Pix.
The Company was incorporated in Delaware on January 7, 1993 and is the
successor to Majestic Entertainment, Inc., which was incorporated in California
on January 6, 1986 and which was merged into the Company on March 23, 1993. The
address of the Company's executive offices is 200 Madison Avenue, New York, New
York 10016. The telephone number at that location is (212) 252-7600.
RISK FACTORS
The Securities offered hereby involve a high degree of risk. Prospective
investors should carefully consider, along with the other information contained
herein, the following risk factors before purchasing any Securities offered
hereby:
1. Nature of the Entertainment Industry. The entertainment programming
and audio compact disc and tape distribution business involves a substantial
degree of risk. The success of a product depends upon
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unpredictable and changing factors such as competition and audience
acceptance, which may bear little or no correlation to the Company's
production and other costs. Audience acceptance of the Company's products
represents a response not only to the artistic components of the products,
but also to the level of advertising and promotion by the distributor and
availability of alternative forms of entertainment and leisure time
activities, general economic conditions and public taste, and other
intangible factors, all of which change rapidly and cannot be predicted with
certainty. In addition, as a result of the Company increasing its resources
to film and television product earlier in its production and acquisition
stages, the possibility always exist that the finished product may be
different from that which was initially envisioned. Therefore, there is a
substantial risk that some or all of the Company's products may not be
commercially successful, resulting in costs not being recouped or anticipated
profits not being realized.
2. Capital Intensive Industry; Additional Financing Requirements. The
entertainment programming and audio compact disc and tape distribution and
licensing industry is capital intensive and requires significant expenditures of
funds to establish a library of Properties from which revenues may be generated.
The Company could be dependent upon future financing in order to compete more
effectively in the marketplace. The Company's cash requirements have been and
will continue to be significant. If additional funding is unavailable to the
Company when needed, the Company could be required to curtail significantly one
or more aspects of its operations and the Company's business and financial
condition could be materially adversely affected.
3. Competition. The Company currently competes with other television and
home video licensing and distribution companies as well as other recording
companies, including many of which have longer-standing relationships in the
industry, significantly greater financial resources and more extensive libraries
than the Company. There can be no assurance that the Company will be able to
compete successfully against these other companies.
4. Shift in Strategy. Although members of management of the Company
have prior experience in film production, the Company has recently increased its
involvement in film and television production activities with respect to which
the Company has a limited track record. This shift in strategy toward an
increased emphasis on motion picture production and acquisition may increase the
rewards available to the Company, but may increase the risks as well.
5. Dependence Upon the Acquisition of Rights to Properties. The
Company's business is dependent upon the acquisition of distribution rights to
additional Properties in order to increase its library and thereby increase its
ability to generate revenues. The Company's opportunity to acquire rights to
additional Properties is limited by its financial resources, the suitability of
available Properties to the Company's business focus and competition from
similar companies.
6 Income Forecast; Basis of Principal Assets; Possible Fluctuation in
Operating Results. Included in the Company's assets at December 31, 1996 are
unamortized film costs of $17,048,000 which include costs incurred for the
production, acquisition and distribution of its Properties and other rights
acquired from third parties. Amortization of these costs is based on the
"individual film forecast method" of accounting. This method, which is
prescribed by generally accepted accounting principles and is standard practice
in the entertainment industry, requires management to project future revenues to
be generated by the Company's Properties and to amortize the costs of the
Properties based on the percentage that revenue recognized bears to total
projected revenues. There can be no assurance that management's projection of
future revenues will be realized. Moreover, if the Company subsequently
determines that future revenues will be less than originally projected, an
adjustment would have to be made in the carrying value of deferred costs which
could materially affect operating results reported in the period such adjustment
is made. Accordingly, there may be significant fluctuation in quarterly
financial results reported by the Company as a result of such adjustments.
7. Outstanding Convertible Securities, Warrants and Options. There are
currently 5,693,112 shares of Common Stock outstanding. In addition, 538,000
shares of Common Stock are issuable upon conversion of outstanding shares of the
Company's Series A 8% Cumulative Convertible Preferred Stock ("Preferred Stock
A"), 3,793,000 shares of Common Stock are issuable upon exercise of outstanding
Common Stock purchase warrants, 2,084,000 shares of Common Stock are issuable
upon the exercise of outstanding Common Stock purchase options granted to
employees of, and consultants to, the Company, 57,750 shares of Common Stock are
issuable upon exercise of outstanding options to purchase Preferred Stock A and
the conversion of the shares of Preferred Stock A acquired upon the exercise
thereof, and 1,605,000 shares of Common Stock are issuable upon conversion of
$7,222,500 principal amount of 10% Convertible Subordinated Notes due June 30,
2003.
Furthermore, (i) $3,025,000 principal amount of Variable Rate Senior
Subordinated Notes are currently outstanding, half of which (for a limited
period of time during 1998) are convertible, at the holder's option, into shares
of Common Stock at a conversion rate based upon the market price of the Common
Stock during the last sixty (60)
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trading days of 1997, (ii) Robert Baruc, the President of A Pix, is entitled
to receive 200,000 shares of Common Stock as a result of the merger of A Pix
with and into the Company, (iii) the Company has a stock option plan
permitting the issuance of up to 600,000 shares of Common Stock (under which
approximately another 160,000 options could be granted), and (iv) the
Company's Board of Directors has authorized granting options to purchase up
to 300,000 shares to be distributed among the Company's employees in such
manner as the officers shall determine based upon the function of the
applicable employees. [The options will have a ten year term but will not
become exercisable until six months prior to their expiration unless the
Company has pre-tax profits of at least $1,500,000 during 1997. If pre-tax
earnings are $3,000,0000 for 1997, then all of the options will become
exercisable. If pre-tax earnings are between $1,500,000 and $3,000,000
for 1997, then the options will become exercisable proportionately, based upon
the extent pre-tax earnings exceed the 1,500,000 threshold (as an example, if
pre-tax earnings are $2,250,000, then 50% of such options will become
exercisable)].
The possibility of exercise or conversion of such shares of Preferred Stock
A, notes, warrants, options and other contractual rights and the inclusion of
the underlying shares of Common Stock in the issued and outstanding Common Stock
of the Company may adversely affect the market price of the Company's
securities.
8. Termination of Rights Under Certain Agreements. Under the terms of
certain of the Company's distribution agreements, the other party to the
agreement, typically the producer, has the right to unilaterally terminate the
agreement if certain levels of revenues are not attained over a fixed period of
time through the Company's licensing and distribution of the Property to which
the agreement relates. If these termination rights are exercised, such exercise
could have a material adverse effect on the operations of one or more of the
Company's divisions.
9. Dependence Upon Key Personnel. The Company is highly dependent on the
services of its Chairman of the Board, Herbert M. Pearlman, its President, David
M. Fox, its Managing Director of International Sales and Marketing, Scott
Hanock, its Executive Vice President (and President of A Pix), Robert Baruc, and
its Treasurer and Chairman of the Executive Committee, David S. Lawi. The loss
of the services of one or more of Messrs. Pearlman, Fox, Hanock, Baruc, or Lawi
would have a material adverse effect upon the Company's business. Presently,
the Company has key man life insurance only on the lives of Messrs. Fox and
Baruc in the amounts of $1,000,000 and $750,000, respectively.
10. Control by Current Stockholders, Officers and Directors. The
executive officers and directors of the Company beneficially own an aggregate of
approximately 42% of the Company's voting capital stock. Such a concentration
of voting power could serve to perpetuate current management.
11. Potential Anti-takeover Effect of Provisions of Certificate of
Incorporation and Delaware Law. The Company's Board of Directors is divided
into three classes, each of which generally serves for a term of three years,
with only one class of directors being elected in each year. The directors may
only be removed, prior to the expiration of their respective terms, for cause
and by a vote of the stockholders. The Company's Certificate of Incorporation
requires the affirmative vote of at least 80% of the outstanding shares of
Common Stock to alter, amend or adopt any provision relating to the election,
number or terms of directors comprising the Board of Directors. This classified
board, the limited rights to remove directors and the super-majority voting
required to change this structure could discourage, prevent or delay a change in
control of the Company, which could have the effect of discouraging bids for the
Company and thereby prevent stockholders from receiving the maximum value for
their shares.
The Company's Certificate of Incorporation also authorizes the issuance of
"blank check" preferred stock with such designations, rights and preferences as
may be determined from time to time by the Board of Directors. Accordingly, the
Board of Directors is empowered, without stockholder approval, to issue
preferred stock with dividend, liquidation, conversion, voting or other rights
which could adversely affect the relative voting power or other rights of the
holders of the Company's Common Stock. In the event of issuance, the preferred
stock could be used, under certain circumstances, as a method of discouraging,
delaying or preventing a change in control of the Company. Although the Company
has no present intention to issue any additional shares of its preferred stock,
there can be no assurance that the Company will not do so in the future.
Section 203 of the Delaware General Corporation Law prohibits a
publicly-held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an interested stockholder, unless (1)
prior to the date of the business combination, the transaction is approved by
the board of directors of the corporation, (2) upon consummation of the
transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owns at least 85% of the outstanding
voting stock, or (3) on or after such date the business combination is approved
by the board of directors and by the affirmative vote of at least 66-2/3% of the
outstanding voting stock which is not owned by the interested stockholder. A
"business combination" includes mergers, asset sales and other transactions
resulting
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in a financial benefit to the stockholder. An "interested stockholder" is a
person who, together with affiliates and associates, owns (or within three
years, did own), 15% or more of the corporation's voting stock. This
provision of law could similarly discourage, prevent or delay a change in
control of the Company, which could have the effect of discouraging bids for
the Company and thereby prevent stockholders from receiving the maximum value
for their shares.
12. No Dividends. The Company has not paid any cash dividends on its
Common Stock to date and does not anticipate declaring or paying any cash
dividends on Common Stock in the foreseeable future. The Company's credit
facility prohibits the payment of cash dividends.
13. Potential Adverse Effect of Redemption of Class B Warrants. The
Class B Warrants offered hereby are redeemable at a price of $.10 per Warrant,
provided that: (i) prior notice of not less than 30 days is given to the
Warrantholders; and (ii) the closing high bid price of the Common Stock on each
of the 20 consecutive trading days (or lesser number of days with the consent of
the Underwriter of the Company's initial public offering, but not less than 10
consecutive trading days) ending on the third day prior to the date on which the
Company gives notice has been at least $5.70. Warrantholders have exercise
rights until the time and date set for redemption. Notice of redemption of the
Class B Warrants could force the holders to exercise their Class B Warrants and
pay the exercise price at a time when it may be disadvantageous for them to do
so, to sell their Class B Warrants at the current market price when they might
otherwise wish to hold the warrants, or to accept the redemption price which is
likely to be substantially less than the market value of the Class B Warrants at
the time of redemption.
14. Current Prospectus and State Blue Sky Registration or Exemption
Required For Exercise of Class B Warrants. Holders of the Class B Warrants
will have the right to exercise their warrants for the purchase of shares of
Common Stock only if (i) a current prospectus relating to such shares is then in
effect and only if the shares are qualified for sale under the securities laws
of the applicable state or states, or (ii) an applicable exemption from such
registration and qualification requirements exist. The Company intends to keep
effective under the Securities Act of 1933, as amended (the "Act"), a current
prospectus which will permit the purchase and sale of the Common Stock
underlying the Class B Warrants offered hereby, but there can be no assurance
that the Company will be able to do so. Although the Company intends to seek to
qualify for sale the shares of Common Stock underlying such warrants in those
states in which such securities are to be offered, where no exemption otherwise
exists, no assurance can be given that such qualification will occur. The Class
B Warrants offered hereby may be deprived of any value if a prospectus covering
the shares issuable upon the exercise thereof is not kept effective under the
Act and current or if such underlying shares are not, or cannot be, registered
in the applicable states and no exemption from such qualification or
registration otherwise exists.
USE OF PROCEEDS
The Company will receive proceeds from the sale of those shares which are
issuable upon exercise of the common stock purchase warrants and options
included within the Derivative Securities. If all such Derivative Securities
are exercised, the Company will receive aggregate gross proceeds of
approximately $9,949,470. No assurance can be given, however, that all or any
portion of such Derivative Securities will be exercised. If any such Derivative
Securities are exercised, the Company intends to use the proceeds for general
corporate purposes, which may include, but are not limited to, acquisitions of
Properties, refinancing of indebtedness, working capital or other capital
expenditures and acquisitions.
SELLING SECURITY HOLDERS
The following table provides certain information with respect to the
securities offered hereby by the Selling Security Holders (the "Selling Security
Holders") (which information has been furnished to the Company by the Selling
Security Holders and other sources which the Company has not verified). Because
the Selling Security Holders may sell all or a portion of their securities
pursuant to this Prospectus and the fact that this offering is not being
underwritten on a firm commitment basis, the amount of securities that may be
owned after the offering assumes that the Selling Security Holders will offer
and sell all of the securities and not acquire any other securities issued by
the Company. The securities offered by this Prospectus may be offered from time
to time, in whole or in part, by the Selling Security Holders or by their
transferees, as to whom applicable information will, to the extent required, be
set forth in a Prospectus Supplement. See "Plan of Distribution."
6
<PAGE>
Class B Warrants
Position,
office or
Number of Percent of relationship
Class B Class B Class B with the
Warrants Warrants Warrants Company and
Beneficially Class B Beneficially Beneficially affiliates
Owned Prior Warrants Owned After Owned After during the
To the that may the the past
Offering(1) be Offered Offering(1) Offering(1) Three Years
------------ ---------- ------------ ------------ ------------
David M. Fox 25,000 25,000 -- -- President,
Chief
Executive
Officer and
a Director
of the
Company.
The Mezzanine
Financial Fund,
L.P. 34,468 34,468 -- -- See
Footnote(2)
Bishop & Co. 15,000 15,000 -- -- Larry
Bishop, a
Director of
the Company
is a general
partner of
Bishop & Co.
Gray, Seifert 5,000 5,000 -- -- Larry
& Co., Inc. Bishop, a
Agent for Betty Director of
B. Iselin the Company,
is an
executive
officer of
Gray,
Seifert &
Co., Inc.
Herbert M.
Pearlman 93,333 45,000 48,333 3.7% Chairman of
the Board of
the Company
David S. Lawi 39,167 22,750 16,417 1.3% Chairman of
the
Executive
Committee,
Treasurer,
Secretary
and Director
of the
Company
_______________
(1) The amount and percentage of Class B Warrants beneficially owned are
reported on the basis of regulations of the Commission governing the
determination of beneficial ownership of securities. Under the rules
of the Securities and Exchange Commission, a person is deemed to be a
"beneficial owner" of a security if that
7
<PAGE>
person has or shares "voting power," which includes the power to vote
or to direct the voting of such security, or "investment power," which
includes the power to dispose of or to direct the disposition of such
security. A person is also deemed to be a beneficial owner of any
securities of which that person has the right to acquire beneficial
ownership within 60 days.
(2) The Mezzanine Financial Fund, L.P. ("Mezzanine") has provided loans
and other financial accommodations to the Company, from time to time,
during the past three years. Messrs. Pearlman and Lawi, executive
officers and directors of the Company, and Mr. Murphy, the Company's
Chief Financial Officer, are officers, directors and principal
stockholders of the general partner of Mezzanine. Walter M. Craig,
Jr., a director of the Company, is also an officer and director of the
general partner of Mezzanine. In addition, Messrs. Pearlman and Lawi
are executive officers, directors and principal stockholders of Helm
Resources, Inc. ("Helm"), which presently owns approximately 9% of the
limited partnership interests of Mezzanine. Mr. Craig is an officer
and director of Helm and Mr. Murphy is an officer of Helm.
8
<PAGE>
Common Stock
<TABLE>
<CAPTION>
Number of Percent of
Common Stock Shares Shares
Beneficially Beneficially Beneficially Position, office or
Owned Prior To Shares Owned After Owned After Relationship to the
the that may the the Company during the
Offering (1) be offered Offering (1) Offering (1) past Three Years
--------------- ------------ --------------- ------------- -------------------
<S> <C> <C> <C> <C> <C>
Critical Mass, L.L.C. 205,402 205,402 ----- ----- See Footnote (2)
Steven Churchill 47,933 47,933 ----- ----- See Footnote (3)
Charles E. Walsh 15,790 15,790 ----- ----- See Footnote (4)
G. Paul Sullivan 13,074 13,074 ----- ----- See Footnote (5)
Garrison & Kelley, 5,640 5,640 ----- ----- See Footnote (6)
CPA's PLLC
TRP General Partnership 5,629 5,629 ----- ----- See Footnote (7)
Eugene Krueger 4,737 4,737 ----- ----- See Footnote (8)
Paul Speer 4,066 4,066 ----- ----- See Footnote (9)
David Lanz 3,219 3,219 ----- ----- See Footnote (10)
Baldwin & Associates, Inc. 3,158 3,158 ----- ----- See Footnote (11)
Jim McKeon 1,500 1,500 ----- ----- See Footnote (12)
Jan C. Nickman 1,320 1,320 ----- ----- See Footnote (13)
Kevin J. Garrison 1,285 1,285 ----- ----- See Footnote (14)
Kipp Kilpatrick 913 913 ----- ----- See Footnote (15)
Robert Baruc 339,999 200,000 139,999 2.4% See Footnote (16)
</TABLE>
- -----------------------------------
(1) The amount and percentage of shares of Common Stock beneficially owned
are reported on the basis of regulations of the Commission governing
the determination of beneficial ownership of securities. Under the
rules of the Securities and Exchange Commission, a person is deemed to
be a "beneficial owner" of a security if that person has or shares
"voting power", which includes the power to vote or to direct the
voting of such security, or "investment power", which includes the
power to dispose of or to direct the disposition of such security. A
person is also deemed to be a beneficial owner of any securities of
which that person has the right to acquire beneficial ownership within
60 days.
(2) The members of Critical Mass, LLC ("Critical Mass") consist of G. Paul
Sullivan, Paul Speer, David Lanz, Kevin Garrison, Kipp Kilpatrick and
Charles E. Walsh. G. Paul Sullivan is the President and a director of
Miramar Images, Inc. ("Miramar"), a wholly-owned subsidiary of the
Company, and was formally a shareholder of Miramar until the Company's
acquisition of such corporation (the "Miramar Acquisition"). Kipp
Kilpatrick is an executive officer of Miramar and was also formally a
shareholder of Miramar. David
9
<PAGE>
Lanz, Kevin Garrison and Paul Speer were shareholders, officers and
directors of Miramar until the Miramar Acquisition. David Lanz and
Paul Speer have licensed various entertainment properties to the
Company in the past and may do so in the future. In addition, Mr.
Garrison's accounting firm, Garrison & Kelley, CPA's PLLC performs
accounting services for Miramar. Each of the members of Critical
Mass had been creditors of Miramar as a result of loans they had
extended to it. The Company purchased Miramar's indebtedness to
them at the same time it purchased all of Miramar's outstanding
shares of capital stock. Pursuant to a contractual obligation, if
the proceeds of the sale of Critical Mass's shares do not at least
equal approximately $900,000 by March 17, 1998 (one year from the
Company's acquisition of Miramar's capital stock) the Company must
pay the amount of the shortfall to Critical Mass. It is expected
that the shares will be sold on or before March 17, 1998 to satisfy
debt owed by Critical Mass' members to institutional lenders as
well as to determine the amount, if any, of the shortfall.
(3) Steven Churchill is a licensor of certain entertainment properties to
Miramar. His shares, which are contained herein, were issued as part
of a settlement for unpaid royalties. Pursuant to a contractual
obligation if the proceeds of the sale of Mr. Churchill's shares do
not at least equal approximately $200,000 by March 17, 1998 (one year
from the Company's acquisition of Miramar's capital stock), the
Company will be required to pay the amount of the shortfall to Mr.
Churchill. It is expected that his shares will be sold on or before
such date.
(4) Charles E. Walsh extended a series of loans to Miramar during 1996.
The shares set forth were issued to Mr. Walsh as partial settlement of
Miramar's indebtedness with respect to such loans. See Footnote (2).
(5) G. Paul Sullivan is the president and a director of Miramar. The
shares set forth were issued by the Company in connection with its
acquisition of Mr. Sullivan's shares of Miramar capital stock. See
Footnote (2).
(6) Garrison & Kelley, CPA's PLLC performs accounting services from time
to time for Miramar. The shares set forth were issued to the firm as
part of a settlement for amounts owed by Miramar for services
rendered. See Footnote (2) and (1).
(7) TRP General Partnership leases office space to Miramar. The shares
set forth were issued as part of a settlement for amounts owed by
Miramar for past rent.
(8) Eugene Krueger is an executive officer of Baldwin & Associates, Inc.
See Footnote (11).
(9) Until the Miramar Acquisition, Paul Speer was an officer, director
and shareholder of Miramar. Mr. Speer has licensed various
entertainment properties to the Company in the past and it is expected
that he will produce and license entertainment properties to the
Company in the future. The shares set forth were issued by the
Company in connection with its acquisition of Mr. Speer's shares of
Miramar capital stock. See Footnote (2).
(10) David Lanz was a shareholder, director and officer of Miramar. Mr.
Lanz has licensed various entertainment properties to the Company in
the past and he may do so in the future. The shares set forth were
issued by the Company in connection with its acquisition of Mr. Lanz's
shares of Miramar capital stock. See Footnote (2).
(11) Baldwin & Associates, Inc. acted as a broker with respect to the
Company's acquisition of Miramar. The shares set forth were issued
by the Company as partial payment of a fee in connection with such
services.
(12) James McKeon has acted as a consultant to Miramar in the past with
respect to specific distribution arrangements and entertainment
projects and could be retained by Miramar from time to time in the
future.. The shares set forth were issued as part of a settlement
of amounts owed by Miramar to Mr. McKeon.
(13) Jan Nickman is a licensor of certain entertainment properties to
Miramar. The shares set forth were issued as part of a settlement of
amounts owed by Miramar to Mr. Nickman primarily for royalties.
(14) Kevin Garrison is a member of the accounting firm Garrison & Kelley,
CPA's PLLC, which provides accounting services to Miramar. Until the
Miramar Acquisition, he also was an officer, director and shareholder
of Miramar. The shares set forth were issued by the Company in
connection with its acquisition of Mr. Garrison's shares of Miramar
capital stock. See Footnotes (2) and (6).
10
<PAGE>
(15) Kipp Kilpatrick is an executive officer of Miramar and, until the
Miramar Acquisition, was a shareholder of Miramar. The shares set
forth were issued by the Company in connection with its acquisition
of Mr. Kilpatrick's shares of Miramar capital stock. See Footnote
(2).
(16) Robert Baruc is an executive officer and a director of the Company.
The shares set forth are issuable to him as a result of the merger
of A Pix with and into the Company.
PLAN OF DISTRIBUTION
The Selling Security Holders Securities may be sold pursuant to this
Prospectus from time to time by the Selling Security Holders, or by pledgees,
transferees or other successors in interest, on the American Stock Exchange
(or such other exchange on which the applicable Selling Security Holders
Securities are listed at the time of sale), or in the over-the-counter market
or otherwise, at prices and on terms then prevailing or at prices related to
the then current market price, or in privately negotiated transactions. The
Selling Security Holders Securities may be sold by various methods,
including, but not limited to one or more of the following: (a) directly in
a privately negotiated transaction; (b) a block trade in which the broker or
dealer so engaged will attempt to sell the Selling Security Holders
Securities as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (c) purchases by a broker or dealer
as principal and resale by such broker or dealer for its own account pursuant
to this Prospectus; (d) an exchange transaction in accordance with the rules
of such exchange; and (e) ordinary brokers' transactions and transactions in
which the broker solicits purchasers. In effecting sales, brokers or dealers
engaged by the Selling Security Holders may arrange for other brokers or
dealers to participate. Alternatively, the Selling Security Holders may from
time to time offer the Selling Security Holders Securities through
underwriters, dealers or agents who may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling Security
Holders or the purchasers of Selling Security Holders Securities for whom
they may act as agents. In addition, any of the Selling Security Holders
Securities which qualify for sale pursuant to Rule 144 under the Act, or
otherwise pursuant to an applicable exemption under such act, may be sold
other than pursuant to this Prospectus. The Selling Security Holders and any
such underwriters, dealers or agents that participate in the distribution of
Selling Security Holders Securities may be deemed to be "underwriters" within
the meaning of the Act, and any profit on the sale of the Selling Security
Holders Securities by such Selling Security Holders and any discounts,
commissions or concessions received by such Selling Security Holders may be
deemed to be underwriting discounts and commissions under the Act. The
Company will not receive any of the proceeds of the offering of the Selling
Security Holders Securities hereunder for the account of the Selling Security
Holders. See "Use of Proceeds."
CHART OF DERIVATIVE SHARES
<TABLE>
<CAPTION>
Exercise or
Conversion Expiration or Number of
Description of Derivative Securities Price Per Share Maturity Date Derivative Shares
- ------------------------------------ --------------- ----------------- ------------------
<S> <C> <C> <C>
Common Stock Purchase Options $3.875 June 30, 2001 400,000
10% Convertible Subordinated
Debentures due June 30, 2003 4.50 June 30, 2003 1,605,000
Common Stock Purchase Warrants 6.00 June 30, 2003 722,250
Common Stock Purchase Warrants 4.50 December 31,2001 295,000
</TABLE>
11
<PAGE>
CHART OF DERIVATIVE SHARES (Continued)
<TABLE>
<CAPTION>
Exercise or
Conversion Expiration or Number of
Description of Derivative Securities Price Per Share Maturity Date Derivative Shares
- ------------------------------------ --------------- ----------------- ------------------
<S> <C> <C> <C>
Class B redeemable common stock 4.28 June 22, 1998 164,555
purchase warrants
Common Stock Purchase Option 3.09 Six months after 10,500
the effective date
of this registration
statement
Common Stock Purchase Warrants 4.28 December 31, 2000 10,500
Common Stock Purchase Warrants 3.70 December 31, 2001 425,805
Common Stock Purchase Warrants 3.325 September 30, 1998 39,375
Common Stock Purchase Warrants 4.04 June 30, 2000 15,750
Common Stock Purchase Warrants 4.92 June 20, 2000 21,000
Common Stock Purchase Warrants 3.80 Three years 2,625
after issuance
Unit Purchase Option 4.225 June 23, 1998 9,975
Class A common stock purchase 3.14 June 22, 1998 9,975
warrants
</TABLE>
The Derivative Shares are issuable upon exercise or conversion of the various
applicable Derivative Securities described above. In addition, this
Prospectus includes the issuance of 9,500 Class B Warrants that are issuable
upon exercise of a Unit Purchase Option, having a price of $4.225 per Unit.
Each such unit consists of one share of Common Stock; one Class A common
stock purchase warrant, each entitling the holder to purchase 1.05 shares of
Common Stock at a price of $3.30 (i.e. $3.14 per share) and expiring June 22,
1998; and one Class B Warrant, each entitling the holder to purchase 1.05
shares of Common Stock at a price of $4.50 (i.e. $4.28 per share) and
expiring June 22, 1998. The Derivative Shares and Derivative Class B
Warrants are being registered pursuant to the Act and offered hereby to
permit the issuance by the Company of registered securities upon the exercise
or conversion of options, warrants or notes in accordance with their terms.
Additional shares of Common Stock may be issuable pursuant to the
antidilution provisions of certain of the Derivative Securities, which shares
are also being registered hereby pursuant to Rule 416 promulgated under the
Act. If all of the warrants and options to purchase the Derivative Shares
are exercised, which would include the exercise of the Derivative Class B
Warrants, the Company will receive aggregate cash proceeds of approximately
$9,949,470. See "Use of Proceeds."
If required by applicable law, at the time a particular offer of
Securities is made, an accompanying Prospectus Supplement will be distributed
which will identify and set forth the aggregate amount of Securities being
offered and the terms of the offering, including the name or names of any
underwriters, dealers or agents, the purchase price paid by any underwriter
for Securities purchased from the Selling Security Holders, any discounts,
commissions and other items constituting compensation from the Selling
Security Holders and/or the Company and any discounts, commissions or
concessions allowed or reallowed or paid to dealers, including the proposed
selling price to the public. Such Prospectus Supplement and, if necessary,
post-effective amendment to the Registration Statement of which this
Prospectus is a part, will be filed with the Commission to reflect the
disclosure of additional information with respect to the distribution of the
Securities.
12
<PAGE>
From time to time the Company may amend this Prospectus by Prospectus
Supplements, or post-effective amendments to the Registration Statement of
which this Prospectus is a part, to offer the Securities obtained by persons
who may, by virtue of their relationship to the Company, be deemed
underwriters under the Act.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of the Securities may not simultaneously engage in
market making activities with respect to such Securities for a specified
period prior to the commencement of such distribution. In addition and
without limiting the foregoing, the Selling Security Holders and any person
participating in the distribution of the Securities will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including without limitation Regulation M promulgated by the
Commission under the Exchange Act, which provisions may limit the timing of
purchases and sales of the Securities by the Selling Security Holders or any
such other person.
In order to comply with certain states' securities laws, if applicable,
the Securities will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states the Securities may not be
sold unless the Securities have been registered or qualified for sale in such
jurisdiction, or unless an exemption from registration or qualification is
available and complied with.
The Company will bear all expenses of the registration of the Securities
under the Act and all expenses of notices and filings with respect to the
Securities under the applicable state Blue Sky laws. The Selling Security
Holders will be responsible for any and all discounts, commissions and other
compensation to underwriters or dealers in the distribution of the Selling
Security Holder Securities.
Transfer Agent
The Transfer Agent for the Common Stock is American Stock Transfer &
Trust Company, 40 Wall Street, New York, New York 10005.
LEGAL MATTERS
Certain legal matters relating to the legality of the Securities offered
hereby have been passed upon for the Company by St. John & Wayne, Heron
Tower, 70 East 55th Street, New York, New York 10022.
EXPERTS
The consolidated financial statements of the Company as of December 31,
1996 and for the two year period then ended incorporated by reference in this
Prospectus have been audited by Richard A. Eisner & Company, LLP, an
independent auditor, as set forth in its report incorporated herein by
reference, and are incorporated herein in reliance upon such report given
upon the authority of such firm as experts in accounting and auditing.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
The Certificate of Incorporation of the Company provides that the Company
shall indemnify to the fullest extent permitted by Delaware law any person
whom it may indemnify thereunder, including directors, officers, employees
and agents of the Company. Such indemnification (other than as ordered by a
court) shall be made by the Company only upon a determination that
indemnification is proper in the circumstances because the individual met the
applicable standard of conduct. Advances for such indemnification may be
made pending such determination. In addition, the Certificate of
Incorporation provides for the elimination, to the extent permitted by
Delaware law, of personal liability of directors to the Company and its
stockholders for monetary damages for breach of fiduciary duty as directors.
The Company has entered into an agreement with each Selling Security
Holder providing for indemnification of the Company, and its officers,
directors and controlling persons, for certain liabilities under the
Securities Act.
13
<PAGE>
Insofar as indemnification of liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the Company, pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in said 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 Company 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 Act and will be governed by the final adjudication of such
issue.
14
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses of Unapix
Entertainment, Inc. in connection with the distribution of the securities being
registered:
Registration Fee..........................................................$5,860
American Stock Exchange Listing Fee......................................$17,500
Legal Fees and Expenses..................................................$10,000
Blue Sky Fees and Expenses................................................$5,000
Accounting Fees and Expenses..............................................$5,000
Miscellaneous Expenses....................................................$1,000
TOTAL................................................................... $44,360
Item 15. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware (the
"General Corporation Law") provides, in general, that a corporation shall have
power to indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he is or was
a director or officer of the corporation. Such indemnity may be against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action, suit
or proceeding, if the indemnitee acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation and
with respect to any criminal action or proceeding, the indemnitee must not have
had reasonable cause to believe his conduct was unlawful.
Section 145(b) of the General Corporation Law provides, in general, that a
corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director or officer of the corporation
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interest of the corporation.
Section 145(g) of the General Corporation Law provides in general that a
corporation shall have the power to purchase and maintain insurance on behalf of
any person who is or was a director or officer of the corporation against any
liability asserted against him or incurred by him in any capacity, or arising
out of his status as such, whether or not the corporation would have the power
to indemnify him against such liability under the provisions of the law.
The Company's By-laws and Amended and Restated Certificate of Incorporation
provide that the Company will indemnify its officers, directors, employees and
agents to the fullest extent permitted by the General Corporation Law.
Section 102(b) of the GCL permits a Delaware corporation, by so providing
in its Certificate of Incorporation, to eliminate or limit the personal
liability of a director to the corporation for damages arising out of certain
alleged breaches of the director's duties to the corporation. The GCL, however,
provides that no such limitation of liability may effect a director's liability
with respect to any of the following: (i) for breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for unlawful payment of dividends or
II-1
<PAGE>
unlawful purchase or redemption of its capital stock, or (iv) for any
transaction from which the director derived an improper personal benefit.
The Company's Amended and Restated Certificate of Incorporation eliminates
the personal liability of the directors to the fullest extent permitted by
Section 102(b) of the GCL.
The Company has entered into an agreement with each Selling Stockholder
which provides for reciprocal indemnification between the Company and the
Selling Stockholder against certain liabilities in connection with this
offering.
Item 16. Exhibits
Exhibit Number Description
4.1 Company's Certificate of Incorporation, dated
January 7, 1993 [incorporated herein by
reference to Exhibit 3.1 to the Company's Form
SB-2 Registration Statement, File No. 33-61798
(the "Registration Statement")].
4.1.1 Amendment No. 1 to Company's Certificate of
Incorporation, dated March 15, 1993
[incorporated herein by reference to Exhibit
3.1.1 to the Registration Statement]
4.1.2 Certificate of Ownership and Merger, dated
March 23, 1993 [incorporated herein by
reference to Exhibit 3.1.2 to the Registration
Statement]
4.1.3 Amendment No.2 to Company's Certificate of
Incorporation, dated April 21, 1993
[incorporated herein by reference to Exhibit
3.1.3 to the Registration Statement].
4.1.4 Amendment No. 3 to Company's Certificate of
Incorporation, dated June 10, 1993
[incorporated herein by reference to Exhibit
3.1.4 to the Registration Statement]
4.1.5 Certificate of Designations, Preferences and
Rights of Series A 8% Cumulative Convertible
Preferred Stock [incorporated herein by
reference to Exhibit 3.1.5 to the Company's
Annual Report on Form 10-KSB for 1993]
4.1.6 Certificate of Increase to the Certificate of
Designations, Preferences and Rights of Series
A 8% Cumulative Convertible Preferred Stock
[incorporated herein by reference to Exhibit
3.1.6 to the Company's Annual Report on Form
10-KSB for 1994]
4.1.7 Certificate of Ownership and Merger, dated
August 8, 1996, merging A Pix Entertainment,
Inc. into the Company [incorporated herein by
reference to Exhibit 3.1.7 to the Company's
Annual Report on Form 10-KSB for 1996]
4.2 By-Laws of the Company [incorporated herein by
reference to 3.2 to the Registration
Statement]
II-2
<PAGE>
4.3 Form of Common Stock Certificate [incorporated
herein by reference to Exhibit 4.1 to the
Registration Statement]
4.4 Form of Class B Warrant Certificate
[incorporated herein by reference to Exhibit
4.3 to the Registration Statement]
4.5 Form of Class B Warrant Agreement between
American Stock Transfer & Trust Company and
the Company [incorporated herein by reference
to Exhibit 4.5 to the Registration Statement]
5.1 Opinion of St. John & Wayne as to the legality
of the securities to be registered [Filed
herewith]
23.1 Consent of Richard A. Eisner & Company, LLP
[Filed herewith]
23.2 Consent of St. John & Wayne [included in
Exhibit 5.1]
24.1 Power of Attorney [included on the signature
page hereof]
Item 17. Undertakings
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) Not Applicable
(ii) Not Applicable
(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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each 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 the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant, or otherwise, the Securities and Exchange Commission
has informed the registrant that such indemnification is against public policy
as expressed in the Act and is therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonably grounds to believe that it meets all of the
requirements of filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on June 19, 1997.
UNAPIX ENTERTAINMENT, INC.
By: /s/ David M. Fox
-----------------------------
David M. Fox, President, Chief
Executive Officer and Director
(principal executive officer)
By: /s/ Daniel T. Murphy
-----------------------------
Daniel T. Murphy
Chief Financial Officer
(principal financial officer)
By: /s/ Steven P. Low
-----------------------------
Steven P. Low, Chief Accounting Officer
(principal accounting officer)
Each person whose signature appears below constitutes and appoints David M.
Fox and Daniel T. Murphy true and lawful attorneys-in-fact and agents each
acting alone, with full powers of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, each acting alone, full powers and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
II-4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates stated.
/s/ Herbert M. Pearlman Chairman of the Board of June 19, 1997
- ------------------------- Directors
Herbert M. Pearlman
/s/ David M. Fox President, Chief Executive June 19, 1997
- ------------------------- Officer and Director
David M. Fox
/s/ David S. Lawi Director June 19, 1997
- -------------------------
David S. Lawi
/s/ Robert Baruc Director June 19, 1997
- -------------------------
Robert Baruc
/s/ Scott Hanock Director June 6, 1997
- -------------------------
Scott Hanock
/s/ Martin D. Payson Director June 19, 1997
- -------------------------
Martin D. Payson
/s/ Walter M. Craig, Jr. Director June 19, 1997
- -------------------------
Walter M. Craig, Jr.
/s/ Lawrence Bishop Director June 19, 1997
- -------------------------
Lawrence Bishop
II-5
<PAGE>
INDEX TO EXHIBITS
Number Description Sequential Page No.
5.1 Opinion of St. John & Wayne
23.1 Consent of Richard A. Eisner & Company,
LLP Independent Auditors
23.2 Consent of St. John & Wayne
(included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature II-4
page hereof)
<PAGE>
Exhibit 5.1
[LETTERHEAD OF ST. JOHN & WAYNE, L.L.C.]
June 18, 1997
Unapix Entertainment, Inc.
200 Madison Avenue
New York, New York 10016
RE: UNAPIX ENTERTAINMENT, INC. FORM S-3 REGISTRATION
STATEMENT COVERING 4,245,975 AND SHARES OF COMMON STOCK AND
156,718 CLASS B REDEEMABLE COMMON STOCK PURCHASE WARRANTS
-----------------------------------------------------------
Dear Sir or Madam:
We have acted as counsel for Unapix Entertainment, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing by
the Company of the captioned Registration Statement on Form S-3 filed under the
Securities Act of 1933, as amended (the "Act") (the "Registration Statement").
In that connection, we have examined the Articles of Incorporation and
By-laws of the Company, the minutes of the various meetings and consents of the
Board of Directors of the Company, originals or copies of all such records of
the Company, agreements, certificates of public officials, certificates of
officers and representatives of the Company and others, and such other
documents, certificates, records, authorizations, proceedings, statutes and
judicial decisions as we have deemed necessary to form the basis of the opinion
expressed below. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to originals of all documents submitted to us as copies thereof.
As to various questions of fact material to such opinion, we have relied upon
statements and certificates of officers and representatives of the Company and
others.
<PAGE>
ST.JOHN & WAYNE, L.L.C.
Unapix Entertainment, Inc.
June 18, 1997
Page 2
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly organized and is validly existing as a
corporation under the laws of the State of Delaware.
2. The issuance, sale and delivery of the Common Stock and the Class B
Redeemable Common Stock Purchase Warrants offered pursuant to the prospectus
forming a part of the Registration Statement have been duly authorized by all
requisite corporate action of the Company, and when so issued (to the extent not
issued on or prior to the date hereof), sold and delivered, and upon receipt of
payment therefor, will be validly issued and outstanding, fully paid and
non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement, and to the reference to our firm under the caption
"Legal Matters" in the Prospectus comprising a part of the Registration
Statement.
By giving the foregoing consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the Act or are
otherwise within the category of persons described in Section 11(a)(4) of the
Act.
Very truly yours,
ST. JOHN & WAYNE, L.L.C.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of our report dated March 5, 1997 which appears on Page F-1 of the
annual report on Form 10-KSB of Unapix Entertainment, Inc. and subsidiaries for
the year ended December 31, 1996 and to the reference to our firm under the
caption "Experts" in the prospectus.
Richard A. Eisner & Company, LLP
New York, New York
June 19, 1997
