<PAGE>
As Filed with the Securities and Exchange Commission on May 5, 1998
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
-----------
UNAPIX ENTERTAINMENT, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 95-4404537
- ------------------------------- ------------------------------------
(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.
St. John & Wayne, L.L.C. Unapix Entertainment, Inc.
Heron Tower - 70 East 55th Street 200 Madison Avenue
New York, New York 10022 New York, New York 10016
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. [ ]
Page 1 of 20.
Exhibits begin on page 18.
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<TABLE>
<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
- ----------------------------------------------------- ------------------- ------------------- ------------------ -----------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 2,382,514 $4.625 $11,019,127.25 $3,250.64
(1)
- ----------------------------------------------------- ------------------- ------------------- ------------------ -----------------
</TABLE>
- ------------------------
(1) 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 May 1, 1998, as
reported on the American Stock Exchange.
----------------------------
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.
<PAGE>
PROSPECTUS UNAPIX ENTERTAINMENT, INC.
2,382,514 Shares of Common Stock
----------------------------
The securities of Unapix Entertainment, Inc. (the "Company") to which this
Prospectus relates consist of 2,382,514 shares (the "Shares") of the Company's
common stock, $.01 par value per share ("Common Stock"), to be offered by
certain persons (the "Selling Security Holders") after conversion of convertible
subordinated notes and exercise of common stock purchase warrants (collectively,
such notes and warrants are referred to as "Derivative Securities") acquired by
such persons in private placements. See "Selling Security Holders."
The Shares may be sold 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 Shares 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."
This Prospectus also relates to such additional Shares which may be issuable
pursuant to anti-dilution provisions of the Derivative Securities which Shares
are being registered hereby pursuant to Rule 416 promulgated under the
Securities Act of 1933 (the "Act").
The Company will receive no cash proceeds from the distribution of the Shares
offered hereby. The Common Stock is primarily traded on the American Stock
Exchange ("AMEX") under the symbol "UPX". On May 1, 1998 the closing sales price
for the Common Stock on the AMEX was $4.625.
SEE "RISK FACTORS" PAGE 4 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 MAY 5, 1998
<PAGE>
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.
--------------------------
Certain information incorporated by reference into this Prospectus under the
captions "Management's Discussion and Analysis of Financial Condition and
Results of Operations", "Business" and elsewhere include "forward-looking
statements" within the meaning of Section 27A of the Act and is subject to the
safe harbor created by that Section. Certain factors which could cause results
to differ materially from those projected in the forward-looking statements are
set forth in the reports filed pursuant to the Exchange Act incorporated by
reference herein.
2
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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, 1997, as filed and as amended.
2. 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.
3. 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 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 a world-wide licensor, distributor and producer of programming
and feature films, for the television market, including free and pay television,
cable and satellite, and the home video market, including video cassette, laser
discs and digital video disks ("DVD"). The Company's current "library" of films
and programs includes feature films, non-fiction series, children's programming,
educational and special interest programming, musical concerts, comedy shows,
adventure series and classic films and serials (together with music videos and
audio recordings, "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 videocassette and other products. Since 1993 the
Company has primarily focused on the licensing and distribution of newer
Properties that are designed to appeal to a specific segmented audience. In 1997
the Company produced a significant number of hours of non-fiction television
programs in order to further exploit this dynamic, and it expects this trend to
continue.
In March 1997, the Company completed the acquisition of all of the capital
stock of Miramar Images, Inc. ("Miramar"), which primarily produces and
distributes music videos and audio recordings for the New Adult Contemporary
Market, i.e., products that are designed to appeal to individuals over the age
of 25.
Currently, in addition to Miramar, the Company's operations consist primarily
of the following: the distribution of videocassettes to domestic home video
rental stores primarily 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 publishers, 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/Miramar.
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.
3
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RISK FACTORS
The Shares 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 Shares 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 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 exists 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 at attractive prices in order to increase its library and
upon the subsequent performance of these Properties in the market place. 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, 1997 are
unamortized film costs of $17,535,000 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 6,050,587 shares of Common Stock outstanding. In addition, 526,390
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"), 3,947,000 shares of Common Stock are issuable upon exercise of outstanding
Common Stock purchase warrants, 2,550,000 shares of Common Stock are issuable
upon the exercise of outstanding Common Stock purchase options granted to
employees of, and consultants to, the Company, 55,125 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 having a conversion price of $4.50 per share, 1,761,514 shares of Common
Stock are issuable upon conversion of $5,250,000 principal amount of 10%
Convertible Subordinated Notes due June 30, 2003 having a conversion price of
$4.75 per share and the exercise of warrants (having an exercise price of $6.00
4
<PAGE>
per share) issuable upon conversion thereof, and 260,000 shares of Common Stock
are issuable upon conversion of $1,300,000 principal amount of 10% Convertible
Subordinated Notes due June 30, 2004 having a conversion price of $5.00 per
share.
Furthermore, the Company has a stock option plan currently permitting
the issuance of up to 875,000 shares of Common Stock, under which approximately
another 280,000 options could be granted.
The possibility of exercise or conversion of such shares of Preferred
Stock A, notes, warrants and options 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. 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.
9. CONTROL BY CURRENT STOCKHOLDERS, OFFICERS AND DIRECTORS. The
executive officers and directors of the Company beneficially own an aggregate of
approximately 45% of the Company's voting capital stock. Such a concentration of
voting power could serve to perpetuate current management.
10. ELECTION OF DIRECTORS Since none of the holders of the Company's
outstanding capital stock have cumulative voting rights, holders of more than
50% of the outstanding shares entitled to vote for the election of the directors
can elect all of the directors of the Company then being elected, and the
holders of the remaining shares by themselves cannot elect any directors.
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 combined outstanding shares entitled
to vote in the election of the Company's directors 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.
Certain series of the Company's convertible notes also contain
provisions which will obligate the Company to offer to repurchase such notes
upon a "Change of Control" (as defined therein), which could have the effect, in
certain circumstances, of discouraging bids for the Company.
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 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 on its common stock.
5
<PAGE>
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares
offered hereby by the Selling Security Holders.
SELLING SECURITY HOLDERS
The following table provides certain information, as of April 7, 1998,
with respect to the Shares offered hereby by the Selling Security Holders listed
below (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 Shares pursuant
to this Prospectus and the fact that this offering is not being underwritten on
a firm commitment basis, the amount of Shares 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
Shares 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."
<TABLE>
<CAPTION>
COMMON STOCK PERCENT OF SHARES
BENEFICIALLY OWNED SHARES NUMBER OF SHARES BENEFICIALLY
PRIOR TO THE THAT MAY BENEFICIALLY OWNED OWNED AFTER
OFFERING(1) BE OFFERED AFTER THE OFFERING(1) THE OFFERING(1)
-------- ---------- ------------------ -------------
<S> <C> <C> <C> <C>
Forest Alternative Strategies Fund II, 100,658 100,658 - -
L.P., Series A-5(2)
Forest Alternative Strategies Fund II, A-5I(2) 10,066 10,066 - -
Forest Alternative 6,711 6,711 - -
Strategies Fund II A5M(2)
Forest Alternative Strategies Fund II, 8,388 8,388 - -
L.P., Series GA5T(2)
Forest Global Convertible Fund, 201,316 201,316 - -
Series A-5(2)
Forest Global Convertible Fund, 8,388 8,388 - -
Series A-1(2)
Forest Performance Fund(2) 17,447 17,447 - -
Forest Greyhound(2) 23,487 23,487 - -
Fox Family Portfolio Partnership(2) 52,007 52,007 - -
Fox Family Fdn(2) 15,099 15,099 - -
Forest Alternative 14,428 14,428 - -
Strategies Fund II, L.P., Series B-3(2)
Forest Global Convertible Fund, 18,454 18,454 - -
Series B-1(2)
Forest Global Convertible Fund, 10,066 10,066 - -
Series B-2(2)
Forest Global Convertible Fund, 10,066 10,066 - -
Series GB3F(2)
Forest Global Convertible Fund, 6,711 6,711 - -
Series B-5(2)
Hull Overseas, Ltd. 83,882 83,882 - -
</TABLE>
6
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<TABLE>
<CAPTION>
COMMON STOCK PERCENT OF SHARES
BENEFICIALLY OWNED SHARES NUMBER OF SHARES BENEFICIALLY
PRIOR TO THE THAT MAY BENEFICIALLY OWNED OWNED AFTER
OFFERING(1) BE OFFERED AFTER THE OFFERING(1) THE OFFERING(1)
-------- ---------- ------------------ -------------
<S> <C> <C> <C> <C>
J.M. Hull Associates, L.P. 83,882 83,882 - -
Highview SSFI Fund, LDC(3) 1,377,773 83,882 1,293,891 19.6%
Angelo, Gordon & Co., L.P.(4) 16,776 16,776 - -
Michaelangelo, L.P.(4) 16,777 16,777 - -
Raphael, L.P.(4) 16,776 16,776 - -
Medici Partners, L.P.(4) 16,776 16,776 - -
Ramius Securities, L.L.C.(4) 16,776 16,776 - -
Ramius Fund, Ltd.(4) 83,882 83,882 - -
Triton Capital Investments, Ltd. 83,882 83,882 - -
JMG Capital Partners, L.P.(5) 88,708 83,882 4,826 *
Commonwealth Life Insurance Company 335,526 335,526
Herbert M. Pearlman(6) 1,324,880 134,210 1,190,670 17%
Bishop & Co(7) 251,823 125,823 126,000 2%
Gray Seifert & Co., Inc. 858,271 41,941 816,330 11.9%
for Betty B. Iselin(8)
Mezzanine Financial Corp.(9) 46,052 46,052 - -
Reserve Convertible Securities Fund 150,000 150,000 - -
c/o New Vernon Advisors, Inc.
Douglas Love, IRA 7,500 7,500 - -
c/o Delaware Charter Guarantee & Trust
David A. Lackland 15,556 7,500 8,056 *
c/o Delaware Charter Guarantee & Trust
Michael C. Stanley 30,000 30,000 - -
Georgie W. Stanley 30,000 30,000 - -
David R. Walker, IRA, c/o United National 15,000 15,000 - -
Bank, Trustee
Thornkild F. Lonstrup 15,556 7,500 8,056 *
Robert L. Crowell 23,056 15,000 8,056 *
Pasquale D'Annibale, IRA, c/o Delaware 7,500 7,500 - -
Charter Guarantee & Trust
Anita von Dreusche 31,112 15,000 16,112 *
Benjamin Campagnuolo 15,556 7,500 8,056 *
Thomas B. Tyson, c/o Delaware Charter 7,500 7,500 - -
Guarantee & Trust
</TABLE>
7
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<TABLE>
<CAPTION>
COMMON STOCK PERCENT OF SHARES
BENEFICIALLY OWNED SHARES NUMBER OF SHARES BENEFICIALLY
PRIOR TO THE THAT MAY BENEFICIALLY OWNED OWNED AFTER
OFFERING(1) BE OFFERED AFTER THE OFFERING(1) THE OFFERING(1)
-------- ---------- ------------------ -------------
<S> <C> <C> <C> <C>
J.C. Kellog Foundation(11) 155,556 75,000 80,556 1.3%
John P. Harkrader, Jr. 3,750 3,750 - -
John P. Harkrader, Jr., Keough P.S., 3,750 3,750 - -
c/o Delaware Charter Guarantee & Trust
George B. Lucas, Jr.(10) 35,300 13,500 21,800 *
Forum Capital Markets, L.L.C. 42,500 42,500 - -
First Montauk Securities 18,360 9,360 9,000 *
Boniface De Blasio (10) 2,040 1,040 1,000 *
Russell J. Lucas (10) 12,300 6,000 6,300 *
Eleanor Harvey (10) 3,000 1,800 1,200 *
Kathleen F. Heine (10) 3,000 1,800 1,200 *
Cruttenden & Roth, Inc. (12) 150,000 150,000 - -
</TABLE>
*less than 1%.
- -----------------------
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 These entities are each managed by Forest Investment Management, L.P.
3 Includes shares of Common Stock beneficially owned by various affiliated
entities and persons; however, each such entity and person disclaims beneficial
ownership of the shares owned by any other person or entity and disclaims
membership in a group.
4 Angelo, Gordon & Co., L.P. controls Michaelangelo, L.P., Raphael, L.P., Medici
Partners, L.P., Ramius Securities, L.L.C., and Ramius Fund, Ltd.
5 JMG Capital Partners, L.P. is the parent company for the beneficial owner, JMG
Convertible Investments, L.P.
6 Mr. Pearlman is Chairman of the Company. Includes 1,000 shares owned by Mr.
Pearlman's wife as to which Mr. Pearlman disclaims beneficial ownership.
7 Includes 26,250 shares owned by Lawrence Bishop, a general partner of this
entity. Lawrence Bishop is a member of the Company's Board of Directors.
8 Lawrence Bishop is the Executive Vice President of Gray Seifert & Co., Inc.
and a member of the Company's Board of Directors. Includes shares owned by
customers of Gray Seifert, however, through agreements with such customers, Gray
Seifert has discretionary power to vote and dispose of all such shares.
9 Mezzanine Financial Corp. is a wholly-owned subsidiary of Helm Capital Group,
Inc. ("Helm"). Herbert M. Pearlman, David S. Lawi, Walter M. Craig, Jr. and
Daniel T. Murphy, the Company's Chairman of the Board, Treasurer, a Director and
Chief Financial Officer, respectively, are each officers and/or directors and
stockholders of Helm.
10 This entity or person is affiliated with First Montauk Securities.
8
<PAGE>
11 Includes shares of Common Stock owned by Kelvest Partners, an affiliate of
this entity.
12 This entity provides financial consulting services for the Company.
PLAN OF DISTRIBUTION
The Shares 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 Shares 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
Shares 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
Shares 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 Shares 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 Shares for whom they may
act as agents. In addition, any of the Shares 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 Shares may be deemed to be "underwriters" within the
meaning of the Act, and any profit on the sale of the Shares 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 Shares hereunder for the account of the Selling Security
Holders. See "Use of Proceeds."
If required by applicable law, at the time a particular offer of Shares
is made, an accompanying Prospectus Supplement will be distributed which will
identify and set forth the aggregate amount of Shares 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 Shares 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 Shares.
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 Shares 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 Shares 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 shares of the
Company's common stock and other securities by the Selling Security Holders or
any such other person.
In order to comply with certain states' securities laws, if applicable,
the Shares will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states the Shares may not be sold unless
the Shares 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 Shares
under the Act and all expenses of notices and filings with respect to the Shares
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 Shares
TRANSFER AGENT
The Transfer Agent for the Common Stock is American Stock Transfer &
Trust Company, 40 Wall Street, New York, New York 10005.
9
<PAGE>
LEGAL MATTERS
Certain legal matters relating to the legality of the Shares offered
hereby have been passed upon for the Company by St. John & Wayne, L.L.C., Heron
Tower, 70 East 55th Street, New York, New York 10022.
EXPERTS
The consolidated financial statements of the Company as of December 31,
1997 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.
10
<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:
<TABLE>
<S> <C>
Registration Fee ................................................$ 3,250.64
American Stock Exchange Listing Fee .............................$ 17,500.00
Legal Fees and Expenses ..........................................$ 7,500.00
Blue Sky Fees and Expenses .......................................$ 1,000.00
Accounting Fees and Expenses .....................................$ 5,000.00
Miscellaneous Expenses ...........................................$ 10,000.00
----------
TOTAL ............................................................$ 44,250.64
----------
</TABLE>
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 General Corporation Law 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 General Corporation Law, 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 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 General Corporation Law.
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.
II-1
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
<S> <C>
5.1 Opinion of St. John & Wayne, L.L.C., 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, L.L.C., [included in
Exhibit 5.1]
24.1 Power of Attorney [included on the signature page hereof]
</TABLE>
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; and
(4) For purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section 13(a)
or 15(b) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) 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 the time shall be deemed to be the initial "bona fide" offering thereof.
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-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable 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 May 5, 1998
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-3
<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.
<TABLE>
<S> <C> <C>
/s/ Herbert M. Pearlman Chairman of the Board of May 5, 1998
- ------------------------------------ Directors
Herbert M. Pearlman
/s/ David M. Fox President, Chief Executive May 5, 1998
- ------------------------------------ Officer and Director
David M. Fox
/s/ David S. Lawi Director May 5, 1998
- ------------------------------------
David S. Lawi
/s/ Robert Baruc Director May 5, 1998
- ------------------------------------
Robert Baruc
/s/ Scott Hanock Director May 5, 1998
- ------------------------------------
Scott Hanock
/s/ Martin D. Payson Director May 5, 1998
- ------------------------------------
Martin D. Payson
/s/ Walter M. Craig, Jr. Director May 5, 1998
- ------------------------------------
Walter M. Craig, Jr.
/s/ Lawrence Bishop Director May 5, 1998
- ------------------------------------
Lawrence Bishop
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
NUMBER DESCRIPTION SEQUENTIAL PAGE NO.
- ------ ----------- -------------------
<S> <C> <C>
5.1 Opinion of St. John & Wayne, L.L.C. 18
23.1 Consent of Richard A. Eisner & Company, LLP Independent 20
Auditors
23.2 Consent of St. John & Wayne, L.L.C. 18
(included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature II-3
page hereof)
</TABLE>
<PAGE>
EXHIBIT 5.1
Writer's Direct Dial
201-491-3348
May 5, 1998
Unapix Entertainment, Inc.
200 Madison Avenue
24th Floor
New York, New York 10016
RE: UNAPIX ENTERTAINMENT, INC.
FORM S-3 REGISTRATION STATEMENT COVERING 2,382,514 SHARES
OF COMMON STOCK ("REGISTERED COMMON STOCK")
Gentlemen:
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").
Terms used herein and not otherwise defined shall have the meaning ascribed
thereto in the Registration Statement.
In that connection, we have examined the Certification of Incorporation
and By-laws of the Company, the minutes of the various meetings and consents of
the Board of Directors of the Company, 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.
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.
<PAGE>
Unapix Entertainment, Inc.
Page 2
May 5, 1998
2. The shares of the Registered Common Stock have been duly authorized
and when issued in accordance with the terms of the respective Common Stock
Purchase Warrants or Convertible Notes pursuant to which such shares are
issuable, so long as such Warrants and Notes are then outstanding and binding
upon the Company in accordance with its terms, will be validly issued, 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 27, 1998 on our audits of the
consolidated balance sheet of Unapix Entertainment, Inc. and subsidiaries (the
"Company") as of December 31, 1997, and the related consolidated statements of
operations, changes in stockholders' equity and cash flows for each of the years
in the two-year period then ended which appears in the annual report on Form
10-KSB, as amended, of the Company for the year ended December 31, 1997 and to
the reference to our firm under the caption "Experts" in the prospectus.
/s/ Richard A. Eisner & Company, LLP
New York, New York
May 1, 1998
