AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 23, 1996.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIG ENTERTAINMENT, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
FLORIDA
--------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
65-0385686
------------------------------------
(I.R.S. employer identification no.)
2255 GLADES ROAD, SUITE 237 WEST, BOCA RATON, FLORIDA 33431
-----------------------------------------------------------
(Address of principal executive offices)
1993 STOCK OPTION PLAN, AS AMENDED, AND DIRECTORS STOCK OPTION PLAN
-------------------------------------------------------------------
(Full title of the plans)
MITCHELL RUBENSTEIN
2255 GLADES ROAD, SUITE 237 WEST, BOCA RATON, FLORIDA 33431
------------------------------------------------------------
(Name and address of agent for service)
(407) 998-8003
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copies to:
Dale S. Bergman, Esq.
Broad and Cassel
201 South Biscayne Blvd.
Suite 3000
Miami, Florida 33131
(305) 373-9454
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED REGISTERED(1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE(2) PRICE(2)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 1,050,000 $.01-$8.4375 $6,714,470.79 $2,034.69
Par Value
- ---------------------------------------------------------------------------------------------------------------------
<FN>
(1) Represents 1,000,000 shares issuable upon exercise of stock options
which have been granted and/or may hereafter be granted under the 1993
Stock Option Plan, as Amended (the "1993 Plan"), and 50,000 shares
issuable upon exercise of stock options which have been granted or may
hereafter be granted under the Directors Stock Option Plan (the
"Directors Plan") (the 1993 Plan and the Directors Plan are hereinafter
collectively referred to as the "Plans").
(2) This range of prices is based upon (i) for options granted under the
Plans, the exercise price in accordance with Rule 457(h)(1) and (ii)
for ungranted options under the Plans, the average of the high and low
prices of the Company's Common Stock as of October 17, 1996, in
accordance with Rule 457(c).
</FN>
</TABLE>
<PAGE>
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission by the Big Entertainment, Inc. (the "Company") are incorporated by
reference into this Prospectus:
(1) Annual Report on Form 10-KSB for the fiscal year ended December
31, 1995;
(2) Quarterly Report on Form 10-QSB for the fiscal quarter ended
March 31, 1996;
(3) Quarterly Report on Form 10-QSB for the fiscal quarter ended
June 30, 1996; and
(4) The description of the Common Stock of the Company contained in
the Company's Registration Statement on Form SB-2, Registration
No. 33-69294, and incorporated by reference to the Company's
Registration Statement on Form 8-A filed pursuant to Section 12
of the Exchange Act, including any amendments and reports filed
for the purpose of updating such description.
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which de-registers the securities
covered hereunder that remain unsold shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the
respective dates of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided in such statute. The Company's Articles of Incorporation provide that
the Company shall indemnify and may insure its officers and directors to the
fullest extent permitted by law. The Company has also entered into an agreement
with each of its directors and executive officers wherein it has agreed to
indemnify each of them to the fullest extent permitted by law.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability for (a) violations of the
criminal law, unless the
II-1
<PAGE>
director had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful; (b) deriving an improper
personal benefit from a transaction; (c) voting for or assenting to an unlawful
distribution; and (d) willful misconduct or a conscious disregard for the best
interests of the Company in a proceeding by or in the right of the Company to
procure a judgement in its favor or in a proceeding by or in the right of a
shareholder. The statute does not affect a director's responsibilities under any
other law, such as the federal securities laws. The effect of the foregoing is
to require the Company to indemnify the officers and directors of the Company
for any claim arising against such persons in their official capacities of such
person acted in good faith and in a manner that he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Act"), may be permitted to directors,
officer or persons controlling the Company pursuant to the foregoing provisions,
the Company has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
5.1 Opinion and Consent of Broad and Cassel
10.1 1993 Stock Option Plan, as Amended
10.2 Directors Stock Option Plan
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Broad and Cassel (contained in its opinion
filed as Exhibit 5.1 to this Registration Statement)
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company 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) To include any prospectus required by Section 10(a)(3)
of the Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
II-2
<PAGE>
individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(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.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934, as amended, (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, as amended) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under 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 the 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Boca Raton, State of Florida, on this 21st day
of October, 1996.
BIG ENTERTAINMENT, INC.
By:/s/ MITCHELL RUBENSTEIN
--------------------------------
Mitchell Rubenstein
Chairman of the Board and Chief
Executive Officer
Each person whose signature appears below on this Registration
Statement hereby constitutes and appoints Mitchell Rubenstein and Laurie S.
Silvers, or any of them, as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place,
and stead, in any and all capacities (until revoked in writing) to sign any and
all amendments (including post effective amendments and amendments thereto) to
this Registration Statement on Form S-8 of Big Entertainment, Inc. and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
full power 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 for all
intents and purposes, as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact or his substitute may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ MITCHELL RUBENSTEIN Chairman of the Board, Chief Executive October 21, 1996
- ------------------------ Officer (principal executive officer and
principal financial and accounting officer)
Mitchell Rubenstein
/s/ LAURIE S. SILVERS Vice Chairman of the Board October 21, 1996
- ------------------------ and President
Laurie S. Silvers
/s/ MARTIN H. GREENBERG Senior Editor and Director October 21, 1996
- ------------------------
Martin H. Greenberg
Director ----------, 1996
- ------------------------
Harry T. Hoffman
</TABLE>
II-4
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ LAWRENCE GOULD Director October 21, 1996
- -------------------------------
Lawrence Gould
/s/ JULES L. PLANGERE, JR. Director October 21, 1996
- -------------------------------
Jules L. Plangere, Jr.
/s/ E. DONALD LASS Director October 21, 1996
- ------------------------------
E. Donald Lass
- ------------------------------ Director ----------, 1996
Deborah J. Simon
- ------------------------------ Director ----------, 1996
John W. Waller, III
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
- ------- -----------
5.1 Opinion and Consent of Broad and Cassel
10.1 1993 Stock Option Plan, as Amended1
10.2 Directors Stock Option Plan2
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Broad and Cassel (contained in its
opinion filed as Exhibit 5.1 to this Registration
Statement)
24.1 Power of Attorney (included on the signature page
of this Registration Statement)
1 Incorporated by reference to Exhibit A filed with the Company's Proxy
Materials filed on July 19, 1996.
2 Incorporated by reference to Exhibit 10.1(d) filed with the Company's
Registration Statement on Form SB-2 (No. 33-69294).
II-5
EXHIBIT 5.1
OPINION AND CONSENT OF
BROAD AND CASSEL
<PAGE>
[LETTERHEAD]
October 23, 1996
Big Entertainment, Inc.
2255 Glades Road
Suite 237 West
Boca Raton, FL 33431
Re: REGISTRATION STATEMENT ON FORM S-8 FOR
BIG ENTERTAINMENT, INC. 1993 STOCK OPTION
PLAN, AS AMENDED, AND DIRECTORS STOCK OPTION PLAN
Ladies and Gentlemen:
On the date hereof, Big Entertainment, Inc., a Florida corporation (the
"Company"), sent for filing with the Securities and Exchange Commission a
Registration Statement on Form S-8 (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to the offering and sale by the Company of up to 1,050,000 shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), pursuant
to stock options ("Options") granted or to be granted under the Company's 1993
Stock Option Plan, as amended, and Directors Stock Option Plan (collectively,
the "Plans"). We have acted as counsel to the Company in connection with the
preparation and filing of the Registration Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Articles of Incorporation
and Bylaws of the Company; (ii) records of corporate proceedings of the Company
authorizing the Plans and related matters; (iii) the Registration Statement and
exhibits thereto; and (iv) such other documents and instruments as we have
deemed necessary for the expression of the opinions
<PAGE>
BIG ENTERTAINMANET, INC.
OCTOBER 23, 1996
herein contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to various questions of
fact material to this opinion, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independently checking or verifying the accuracy of such
documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Company presently has available at least 1,050,000 shares of authorized and
unissued Common Stock from which the 1,050,000 shares of Common stock proposed
to be sold pursuant to the exercise of Options granted under the Plans may be
issued. In addition, assuming that the Company maintains an adequate number of
authorized but unissued shares of Common Stock available for issuance to those
persons who choose to exercise their Options, and that the consideration for the
underlying shares of Common Stock issued pursuant to the Options is actually
received by the Company as provided in the Plans, we are of the opinion that the
shares of Common Stock issued pursuant to the exercise of Options granted under
and in accordance with the terms of the Plans will be duly and validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Very truly yours,
BROAD AND CASSEL
/s/ Broad and Cassel
EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 16, 1996 (except with respect to the matter discussed in Note 4, as to
which the date is March 26, 1996) included in Big Entertainment, Inc.'s Form
10-KSB for the year ended December 31, 1995 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
/s/ Arthur Andersen LLP
- --------------------------
Miami, Florida,
October 18, 1996.
