As filed with the Securities and Exchange Commission on November 27, 1996
Registration No. 333-_________
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-----------------------
OVERSEAS FILMGROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3751702
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
8800 SUNSET BOULEVARD
LOS ANGELES, CALIFORNIA 90069
(Address of principal executive offices) (Zip Code)
-----------------------
1996 SPECIAL STOCK OPTION PLAN AND AGREEMENT
(Full title of the Plan)
-----------------------
ELLEN DINERMAN LITTLE
CO-CHAIRMAN, PRESIDENT AND CO-CHIEF EXECUTIVE OFFICER
OVERSEAS FILMGROUP, INC.
8800 SUNSET BOULEVARD
LOS ANGELES, CALIFORNIA 90069
(Name and address, including zip code of agent for service)
(310) 855-1199
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share Price Fee
<S> <C> <C> <C> <C>
Common Stock,
$.001 par value 1,075,000 shares $5(2) $5,375,000(2) $1,628.79
Common Stock,
$.001 par value 1,125,000 shares $8.50(2) $9,562,500(2) $2,897.73
Aggregate Filing Fee: $4,526.52
==============================================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1996 Special Stock
Option Plan and Agreement by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without
the receipt of consideration which results in an increase in the
number of the outstanding shares of Common Stock of Overseas
Filmgroup, Inc.
(2) Calculated based on the offering price of the shares of Common Stock.
<PAGE>
PROSPECTUS
2,200,000 SHARES
Overseas Filmgroup, Inc.
COMMON STOCK
($0.001 PAR VALUE PER SHARE)
-----------------
This Prospectus relates to the offer and sale of up to 2,200,000
shares of the Common Stock, $0.001 par value per share (the "Shares"), of
Overseas Filmgroup, Inc., a Delaware corporation (the "Company") formerly
known as Entertainment/Media Acquisition Corporation ("EMAC"), by two of the
Company's stockholders (the "Selling Stockholders"). Each of the Selling
Stockholders is an executive officer of the Company and a member of the
Company's Board of Directors (the "Board"), and the Shares will be acquired by
such individuals pursuant to the option grants made to them under the
Company's 1996 Special Stock Option Plan and Agreement (the "Plan"). The
Shares issued to the Selling Stockholders will be registered on a Form S-8
Registration Statement filed by the Company under the Securities Act of 1933,
as amended (the "Securities Act").
The Shares may be offered by the Selling Stockholders from time to
time in broker-dealer transactions effected on the OTC Bulletin Board at
market prices prevailing at the time of the sale. For further information
concerning such sales, see the section below entitled "Plan of Distribution."
The Company will not receive any of the proceeds from the sale of the Shares
offered hereby.
For information concerning the principal risk factors associated with
a purchase of the Shares offered hereby, see the section below entitled "Risk
Factors."
The Company's Common Stock is quoted on the OTC Bulletin Board under
the symbol OSFG. On November 25, 1996, the average of the closing bid and
asked prices of the Common Stock was $5 3/8 per share.
-------------------------------
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 SECURITIES 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 NOVEMBER 27, 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements, information statements
and other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements and other information filed by the
Company may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices located at Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511, and at Seven World Trade Center, New York, New York 10048. Copies
of such material can be obtained by mail from the Public Reference Branch of
the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission also maintains a site on the World Wide Web
that contains reports, proxy and information statements and other information
regarding registrants that file electronically. The address for such site is
http://www.sec.gov.
The Company has filed with the Commission a registration statement on
Form S-8 (herein, together with all amendments and exhibits, referred to as
the "Registration Statement") under the Securities Act with respect to the
Common Stock issuable under the Plan, including the Shares offered hereby.
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information regarding
the Company, the Common Stock offered hereby and the Plan, reference is hereby
made to the Registration Statement and to the exhibits and schedules filed
therewith. The Registration Statement, including the exhibits and schedules
thereto, may be inspected at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and
copies of all or any part thereof may be obtained from such office upon
payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Overseas Filmgroup, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended November 30, 1995 filed with the SEC on February
28, 1996;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
fiscal quarters ended February 29, 1996, May 31, 1996 and
August 31, 1996, filed with the SEC on April 15, 1996, July
15, 1996, and October 15, 1996, respectively; and the
Registrant's Form 10-Q/A amending the Quarterly Report on
Form 10-Q for the fiscal quarter ended May 31, 1996;
(c) The Registrant's current report on Form 8-K filed with the
SEC on November 12, 1996;
(d) The Registrant's definitive proxy statement filed with the
SEC on September 27, 1996, in which there is set forth
audited financial statements for the Registrant's fiscal
years ended November 30, 1994 and November 30, 1995; and
(e) The Registrant's Registration Statement No. 0-25308 on Form
8-A filed with the SEC on December 21, 1994, in which there
is described the terms, rights and provisions applicable to
the Registrant's outstanding Common Stock, as such terms,
rights and provisions have been amended by certain exhibits
to the Company's Current Report on Form 8-K filed with the
SEC on November 12, 1996.
(f) All other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of
the offering of the Shares.
<PAGE>
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon the request of such person, a copy of
any or all of the documents which are incorporated herein by reference (other
than exhibits to such information, unless such exhibits are specifically
incorporated by reference into the information this Prospectus incorporates).
Requests should be directed to Overseas Filmgroup, Inc., 8800 Sunset
Boulevard, Los Angeles, California 90069, Attention Chief Operating Officer,
telephone (310) 855-1199.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION
WITH THE OFFERING MADE HEREBY, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, ANY SELLING STOCKHOLDER OR BY ANY OTHER PERSON. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITY OTHER THAN THE
SECURITIES COVERED BY THIS PROSPECTUS, NOR DOES IT CONSTITUTE AN OFFER TO OR
SOLICITATION OF ANY PERSON IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION MAY NOT LAWFULLY BE MADE.
THE COMPANY
Overseas Filmgroup, Inc. (the "Company") is an independent film
company which specializes in the acquisition and worldwide license or sale of
distribution rights to independently produced, feature films in a wide variety
of genres. On October 31, 1996, Overseas Filmgroup, Inc., then a
privately-held Delaware corporation ("Pre- Merger Overseas") merged with and
into the Company, then known as EMAC. As a result of the merger, EMAC changed
its name to "Overseas Filmgroup, Inc." and succeeded to the business of
Pre-Merger Overseas. The Company is organized and existing under the laws of
the State of Delaware. The Company's principal executive offices are located
at 8800 Sunset Boulevard, Los Angeles, California 90069, and the Company's
telephone number is (310) 855-1199.
RISK FACTORS
The discussion in this Prospectus regarding the Company and the
entertainment industry contains "forward- looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995. Such
statements consist of any statement other than a recitation of historical fact
and can be identified by the use of forward-looking terminology such as "may,"
"expect," "anticipate," "estimate" or "continue" or the negative thereof or
other variations thereon or comparable terminology. The reader is cautioned
that all forward-looking statements are necessarily speculative and there are
certain risks and uncertainties that could cause actual events or results to
differ materially from those referred to in such forward looking statements.
The discussion below highlights some of the more important risks regarding the
Company. The risks highlighted below should not be assumed to be the only
things that could affect future performance. The Company does not have a
policy of updating or revising forward- looking statements and thus it should
not be assumed that silence by management of the Company over time means that
actual events are bearing out as estimated in such forward looking statements.
GENERAL RISKS RELATED TO THE MOTION PICTURE INDUSTRY
The motion picture industry is highly speculative and inherently
risky. There can be no assurance of the economic success of any motion picture
since the revenues derived from the production and distribution of a motion
picture (which do not necessarily bear a direct correlation to the production
or distribution costs incurred) depend primarily upon its acceptance by the
public, which cannot be predicted. The commercial success of a motion picture
also depends upon the quality and acceptance of other competing films released
into the marketplace at or near the same time, the availability of alternative
forms of entertainment and leisure time activities, general economic
conditions and other tangible and intangible factors, all of which can change
and cannot be predicted with certainty. Therefore, there is a substantial risk
that some or all of the motion pictures released, distributed or produced by
the Company will not be commercially successful, resulting in costs not being
recouped or anticipated profits not being realized.
<PAGE>
SIGNIFICANT CHANGES IN THE MOTION PICTURE INDUSTRY
The entertainment industry in general, and the motion picture
industry in particular, are dynamic industries which have undergone
significant changes. Some of the most recent changes include changes in the
relative contributions of the components of total motion pictures industry
revenues (including an increase in the revenues generated from the licensing
of rights in ancillary (other than domestic theatrical) media), ownership
changes, consolidation and rapid technological change. The Company has not
benefitted from some of these changes. For instance, to date, the Company has
not realized any significant revenues from the newest revenue sources such as
computer and video games and other interactive media. In addition, some of the
changes in the motion picture industry have had a negative impact upon the
Company. For example, despite the expansion in the market for video cassettes
for home use, retail video stores increasingly have been purchasing fewer
copies of video cassettes of motion pictures which have not been theatrically
released and more copies of major studio theatrical hits. Because the Company
distributes a number of films that are not released theatrically, this trend
has had a negative impact on the Company and has led, in part, to the Company
establishing its own domestic theatrical distribution operation. It is not
possible to predict what changes or trends will continue in the motion picture
industry, what new changes or trends might occur, and the overall effect these
factors will have on the potential revenue from and profitability of
feature-length motion pictures and the business of the Company.
CERTAIN CONSIDERATIONS REGARDING FIRST LOOK PICTURES
Although the Company historically did not generally directly exploit
the motion pictures that it distributed but licensed the distribution rights
to domestic and foreign sub-distributors, the Company increasingly engages
directly in theatrical distribution in the United States through its First
Look Pictures' operations. Domestic theatrical distribution, which involves
the licensing and booking of motion pictures to theatrical exhibitors in the
United States, the promotion of these motion pictures through advertising and
publicity campaigns and the manufacture of release prints from the film
negative, is very competitive. A substantial majority of the motion picture
screens in the United States are typically committed at any one time to
between 10 and 15 films distributed nationally by the major studio
distributors that can command greater access to available screens. Although
some exhibitors specialize in the exhibition of independent, specialized
motion pictures and "art-house" films, there is intense competition for screen
availability for these films as well. The number of motion pictures released
theatrically in the United States has increased in recent years, thereby
increasing competition for exhibition outlets and audiences. Domestic
theatrical distribution, which often requires substantial expenditures for
marketing and the manufacturing of release prints, is also very risky. The
success of a domestic theatrical release by First Look Pictures can be
affected by a number of factors outside of its control, including audience and
critical acceptance, the success of competing films in release, awards won by
First Look Pictures' releases or that of its competition, inclement weather,
and competing televised events (such as sporting and news events). Payment by
a national theater chain in the United States is typically made on the close
of the engagement in all such chain's theaters. Since First Look Pictures
typically releases its films on a more limited basis than a distributor of
national, wide releases and since First Look Pictures' specialized or "art-
house" releases can have extended runs, payment to the Company by theater
chains is often not made for four to nine months from initial release, or
longer. In addition, First Look Pictures' releases are exhibited by a
substantial number of independent theater owners for which it can be
comparatively more difficult to monitor and enforce timely payment than with
respect to national theater chains. The Company often commits to spend at
least a minimum amount on prints and advertising with respect to motion
pictures distributed theatrically through First Look Pictures and generally,
in addition to receiving a distribution fee, the Company is entitled to recoup
its prints and advertising expenditures. As a result of the factors listed
above, and depending upon audience acceptance of the films distributed through
First Look Pictures, the Company expects that, in many cases, it will not
recoup all of its distribution expenses or derive any profit from domestic
theatrical distribution of First Look Pictures' releases, without taking into
account revenues from such films in ancillary media and international markets.
In addition, there can be no assurance that total revenues from any First Look
Pictures' release will be sufficient to allow the Company to recoup all of its
costs or to realize a profit on such film.
DEPENDENCE ON KEY EXECUTIVES
Ellen Dinerman Little and Robert B. Little serve as the Company's
Co-Chairs of the Board and Co-Chief Executive Officers. Ellen Dinerman Little
also serves as President of the Company. Each of these executives has
<PAGE>
over 21 years of experience in the motion picture industry and extensive
relationships with the motion picture community, including creative talent and
the leading domestic and international distributors. Virtually all decisions
concerning the conduct of the business of the Company, including the motion
picture properties and rights to be acquired by the Company and the
arrangements to be made for the distribution, production and financing of
motion pictures by the Company, are made or are significantly influenced by
these key executives. The loss of either of their services for any reason
would have a material adverse effect on the Company's business and operations
and its prospects for the future. In addition, the Company's amended credit
facility contains covenants and similar provisions, generally requiring Ms.
Little and Mr. Little's continued involvement with, and control of, the
Company.
The Company is named as the beneficiary under an aggregate of
$1,700,000 of "key man" life insurance on the life of Robert B. Little and
$3,700,000 on the life of Ellen Dinerman Little. The Company has also entered
into employment agreements with these executives and with William F. Lischak,
the Chief Operating Officer and Chief Financial Officer of the Company, for
terms ending five years from October 31, 1996. Under certain circumstances,
these employment agreements may be terminated earlier by the Company or the
executives.
INCREASING ACQUISITION, PRODUCTION AND MARKETING COSTS
The costs of producing and marketing motion pictures have increased
dramatically in recent years. The average direct negative cost in 1995 for
films released by the major United States production studios was $36,400,000,
an increase of 6.4% from 1994 and 65% from 1989. Direct negative costs include
production costs of acquiring or developing the screenplay, the compensation
of creative and other production personnel, film studio and location rentals,
equipment rentals, film stock and other costs incurred in principal
photography, and post-production costs including the creation of special
effects and music, but exclude distribution expenses, such as the costs of
advertising and release prints, capitalized interest and overhead. The average
marketing cost per picture in 1995 for films released by the major studios was
$17,700,000, an increase of 10.6% from 1994 and 92% from 1989. These costs
will likely continue to increase in the future, thereby increasing the capital
required for the operations of motion picture producers and distributors (both
the major studios and independent film companies, including the Company), and
the risk borne by such parties. The motion pictures distributed, financed or
produced by the Company typically have had direct negative costs substantially
below the average for the major studios. For 1994, 1995 and the first six
months of 1996, the average direct negative costs of motion pictures
distributed by the Company were approximately $1,880,000, $2,000,000 and
$2,800,000, respectively. The average print and advertising costs associated
with the three motion pictures distributed by First Look Pictures from January
1, 1995 through June 30, 1996 were approximately $1,300,000. The Company may
from time to time in the future distribute, finance or produce motion pictures
with substantially larger direct negative costs and marketing costs. Such
costs may in certain circumstances be substantially in excess of the average
direct negative and marketing costs of the films historically distributed by
the Company. In addition, as part of the Company's overall business strategy,
it intends to gradually and selectively acquire rights to, finance or produce
films which the Company believes have greater production values (often as a
result of larger budgets) and greater potential for more widespread audience
appeal. As a result, management of the Company anticipates that in the future
its costs and expenses (including those of acquiring distribution rights) may
rise significantly.
INCREASED MOTION PICTURE INVESTMENT BY THE COMPANY
The Company typically acquires distribution rights in a motion
picture for a specified term in one or more territories and media. In some
circumstances, the Company also acquires the copyright to the motion picture.
The arrangements the Company enters into to acquire rights often includes the
Company agreeing to pay an advance or minimum guarantee for the rights
acquired and/or agreeing to advance print and advertising costs, obligations
which are independent of the actual financial performance of the motion
picture being distributed. The risks incurred by the Company dramatically
increase to the extent the Company takes such actions. The Company committed
to pay an advance or minimum guarantee or advance print and advertising costs
with respect to approximately eight films in 1995 (for an aggregate commitment
in excess of the aggregate "pre-sale" or "pre-license" commitment obtained
from sub-distributors with respect to such films of approximately $9,040,000)
and approximately five films in the first six months of 1996 (for an aggregate
commitment in excess of the "pre-sale" or "pre-license" commitment obtained
from sub-distributors with respect to such films of approximately $8,800,000),
compared to approximately six films in 1994 (for an aggregate commitment in
excess of the "pre-sale" or "pre-license" commitment obtained
<PAGE>
from sub-distributors with respect to such films of approximately $3,430,000).
While the Company generally works with independent producers who have already
developed projects, the Company also incurs significant risk to the extent it
engages in development or production activities itself, given the costs and
risks associated with such activities, including the uncertainty of whether
any particular development project will eventually result in a completed film.
Although the Company may, in certain circumstances, reduce some of the
foregoing risks by sub- licensing certain distribution rights in exchange for
minimum guarantees from sub-licensees such as foreign sub- distributors (see "
Certain Considerations Relating to the Receipt of Minimum Guarantees by the
Company" below), the risks incurred by the Company are generally greater the
greater the "investment" by the Company in a motion picture. This "investment"
by the Company in a motion picture includes the cost of acquisition of the
distribution rights (including any advance or minimum guarantee paid to the
producer), the amount of the production financed, and the marketing and
distribution costs borne. For a variety of reasons, including (i) the
likelihood of continued industry-wide increases in acquisition, production and
marketing costs (see "-- Increasing Acquisition, Production and Marketing
Costs" above); (ii) the Company's intent to gradually and selectively acquire
rights to or produce films which have greater production values (often as a
result of larger budgets); and (iii) the Company's increasing role as the
principal financier of a greater portion of the motion pictures it
distributes, the "investment" by the Company in the motion pictures it
distributes in the future and the associated risks faced by the Company are
likely to increase.
CERTAIN CONSIDERATIONS RELATING TO THE RECEIPT OF MINIMUM GUARANTEES BY THE
COMPANY
The Company does not always receive a minimum guarantee from the
licensing of distribution rights to sub- distributors, thus increasing the
Company's reliance on the actual financial performance of the film being
distributed. In some circumstances, whether the Company receives a minimum
guarantee depends upon the media. For example, the Company is increasingly
(particularly with respect to motion pictures which have not been theatrically
released) entering into video distribution arrangements with sub-distributors
where no minimum guarantee is paid to the Company. Even if the Company does
obtain minimum guarantees from its sub-distributors, such minimum guarantees
do not assure the profitability of the Company's motion pictures or the
Company's operations. Additional revenues may be necessary from distribution
of a motion picture in order to enable the Company to recoup any investment in
such motion picture in excess of the aggregate minimum guarantees obtained
from such sub- distributors, pay for distribution costs, pay for ongoing
acquisition and development of other motion pictures by the Company and cover
general overhead. While the pre-licensing of distribution rights to
sub-distributors in exchange for minimum guarantees may reduce some of the
risk to the Company from unsuccessful films, it may also result in the Company
receiving lower revenues with respect to highly successful films than if such
licensing of distribution rights were made upon different terms that, for
example, might have provided lower minimum guarantees to the Company but also
provided a lower distribution fee (i.e., a lower percentage of gross revenues)
to the sub-distributor.
ABILITY TO ACHIEVE ACQUISITION AND DISTRIBUTION GOALS
The Company currently intends to acquire rights to and distribute
approximately twelve to eighteen films per year. The Company, alone or in
conjunction with others, currently intends to selectively finance (typically
by agreeing to pay the independent producer a minimum guarantee for the
distribution rights to be acquired by the Company) all or a portion of the
production costs of, or produce, an aggregate of approximately six to ten of
these films. No assurance can be given that such goals will be met in future
periods or that the number of films acquired, distributed and/or financed will
not exceed such estimated ranges. The acquisition, production, completion and
distribution of motion pictures is subject to numerous uncertainties,
including financing requirements, personnel availability and the release
schedule of competing films.
RENEWAL OR REFINANCING OF CREDIT FACILITY
The Company's operations are supported by a credit facility from
Coutts & Co. ("Coutts") and Berliner Bank A.G. London Branch ("Berliner") that
is reviewed on an annual basis. The commitment to lend under the credit
facility will expire on May 9, 1997, the date of the next annual review.
Certain advances made under the credit facility are due upon expiration of the
commitment to lend while certain others are due one year after the advance of
funds. In order to have sufficient funds available to maintain its
acquisition, distribution, finance and production activities, the Company will
need to renew or refinance the credit facility on or before May 9, 1997. There
can be no assurance that the Company will be able to renew or refinance its
credit facility on terms similar
<PAGE>
to the existing terms, or at all. Failure to do so would have a material
adverse effect on the business, financial condition and operations of the
Company.
COMPETITION
Motion picture production, finance and distribution are highly
competitive businesses in the United States and internationally, with
competition coming both from companies within the motion picture industry and
companies in other entertainment media. Many of these competitors have
significantly greater financial and other resources than the Company. The
Company's ability to compete successfully depends in large part upon the
continued availability of independently-produced, domestic and foreign, motion
pictures and the Company's ability to identify and acquire distribution rights
and distribute such motion pictures successfully. A number of formerly
independent motion picture companies have been acquired in recent years by
major entertainment companies. These transactions have significantly increased
competition for the acquisition of distribution rights to independently
produced motion pictures by eliminating some available sources of
independently produced films and providing greater financial resources to
other previously independent companies engaged in the business of acquiring
distribution rights to independently produced films.
CERTAIN RISKS ASSOCIATED WITH INTERNATIONAL DISTRIBUTION
A significant portion of the Company's revenue (approximately 66% in
1995) is from the distribution of motion pictures and the licensing of
distribution rights in territories outside the United States. The Company's
financial results and results of operations could be negatively affected by
such factors as changes in foreign currency exchange rates and currency
controls, trade protection measures, motion picture piracy, content
regulation, longer accounts receivable collection patterns, changes in
regional or worldwide economic or political conditions or natural disasters.
Because the Company's contracts are typically denominated in U.S. dollars,
advances and minimum guarantees of sublicense fees payable to the Company by
foreign sub-distributors, and advances and minimum guarantees to be paid by
the Company to foreign producers in connection with the acquisition of
distribution rights, are generally unaffected by exchange rate fluctuations.
However, to the extent the Company's agreements with foreign sub-distributors
require such sub-distributors to pay the Company a percentage of revenues in
excess of any advance or minimum guarantee, fluctuations in the currencies in
which such revenues are received by the sub- distributor may affect the amount
of U.S. dollars received by the Company in excess of any minimum guarantee.
Exchange rate fluctuations could also affect the ability of sub-distributors
to bid for and acquire rights to motion pictures distributed by the Company.
Management of the Company does not believe exchange rate fluctuations have had
a material effect on the Company's results of operations in the past, although
no assurances can be given that these fluctuations will not have a material
impact on its results of operations in the future.
FLUCTUATION OF OPERATING RESULTS; ANTICIPATED LOSS FROM ONE-TIME CHARGE
Although the Company has achieved annual profitability for each full
fiscal year since 1987 (the first fiscal year in which accountants reviewed or
audited its financial statements), the Company believes it has experienced
losses in interim periods and may incur losses in interim periods in the
future. Often such interim losses have resulted from fluctuations in the
number of films released by the Company from quarter to quarter (as discussed
below), because the Company, in many cases, may recognize a substantial
portion of the revenues relating to a film upon the initial release of the
film. In addition, there can be no assurance that the operation of the Company
in the future, on an annual basis, will be profitable. Most of the Company's
revenues are derived from the exploitation of the relatively limited number of
motion pictures distributed by the Company (compared to the number of films
distributed by the major studios). The number of motion pictures for which the
Company acquires distribution rights may vary significantly from quarter to
quarter. The number of motion pictures which the Company distributes,
including its First Look Pictures' releases, also may vary significantly from
quarter to quarter, due to uncertainties in the release schedules of such
motion pictures. In addition, the audience response to the motion pictures
that the Company distributes is unpredictable. As a result of the foregoing,
the Company's revenues, expenses and earnings have historically fluctuated and
are likely to continue to fluctuate significantly from quarter to quarter.
Accordingly, the Company's revenues, expenses and earnings in any particular
period may not be indicative of the results for any future period. Management
of the Company anticipates that, primarily as a result of a one-time,
non-recurring charge to income resulting from the termination of the federal S
corporation status of pre-merger Overseas Filmgroup, Inc.
<PAGE>
upon consummation of its merger with and into the Company, the Company will
incur a net loss for the quarter ending December 31, 1996. Such accounting
charge will also significantly reduce the Company's earnings for the year
ending December 31, 1996, and could result in a loss for such period.
CONCENTRATION OF OWNERSHIP BY PRINCIPAL STOCKHOLDERS
Ellen Dinerman Little and Robert B. Little beneficially own
approximately 55% of the outstanding common stock of the Company (including
for this purpose shares of Common Stock for which they have been granted
proxies and assuming no exercise of then outstanding options or warrants). The
executive officers and directors of the Company, including Ms. Little and Mr.
Little, in the aggregate, beneficially own approximately 65.1% of the
outstanding Common Stock of the Company. As a result of this concentration of
ownership, as well as certain provisions of the Company's Restated Certificate
of Incorporation and Bylaws and provisions of certain of the agreements
entered into in connection with the Merger, these stockholders will be able to
exercise control over matters requiring stockholders' approval, including the
election of directors, and significant corporate transactions, including
mergers, consolidations and sales of all or substantially all of the assets of
the Company, subject in each case to the Stockholders' Voting Agreement and
Operating Guidelines entered into and adopted, respectively, in conjunction
with the Merger. In addition, these factors are likely to have the effect of
discouraging third parties from acquiring substantial blocks of the Company's
Common Stock. Such concentration of ownership also could tend to limit the
price that investors might be willing to pay in the future for shares of
Common Stock as it may reduce the possibility of a change in control of the
Company. A change in control of an issuer frequently occurs at a premium over
the historical trading prices of the issuer's publicly traded Common Stock.
POTENTIAL ADVERSE EFFECT ON MARKET PRICE RESULTING FROM SECURITIES ELIGIBLE
FOR FUTURE SALES
Sales of substantial amounts of shares of Common Stock of the Company
(including shares issued upon the exercise of outstanding options and
warrants) in the public market or the prospect of such sales could adversely
affect the market price of the Common Stock of the Company. As of October 31,
1996, the Company has outstanding 5,777,778 shares of Common Stock, assuming
no exercise of existing options and warrants. Of those shares, 2,100,000
shares are freely tradable without restriction. An additional 500,000 shares
are held by persons who were stockholders of EMAC prior to its initial public
offering of common stock in February, 1995, and have been placed in escrow
pursuant to which the holders thereof have agreed not to sell or otherwise
transfer these shares until February 16, 1998. The remaining 3,177,778 shares
are subject to the Lock-Up and Registration Rights Agreement entered into at
the time of the consummation of the Merger, pursuant to which 1,059,260
shares, 1,059,259 shares and 1,059,259 shares will be available for resale in
the public market on February 16, 1998, February 16, 1999 and February 16,
2000, respectively, or earlier in limited circumstances, provided such shares
are registered under the Securities Act pursuant to certain "piggyback" and
demand registration rights or are resold pursuant to Rule 144 under the
Securities Act ("Rule 144"). In addition, there are outstanding (i) the
4,200,000 Public Warrants, which entitle the holders to purchase at a price of
$5.00 per share one share of Common Stock for each Public Warrant, commencing
on the consummation of the Merger and ending on February 16, 2002, (ii) the
300,000 Bridge Warrants, which are identical to the Public Warrants except
that they are redeemable by the Company beginning 90 days after the
consummation of the Merger, (iii) 200,000 UPOs ("UPOs"), subject to certain
demand and "piggyback" registration rights, initially exercisable at $9.90 per
UPO, of an option to purchase one share of Common Stock and two warrants
identical to the Public Warrants at an exercise price of $5.85 per share,
which option expires on February 16, 2000, and (iv) a warrant to purchase
62,500 shares of Common Stock which are subject to certain "piggy-back"
registration rights. Notwithstanding the above, any shares that are purchased
by "affiliates" of the Company, as that term is defined in Rule 144, will be
subject to the resale limitations of Rule 144. The Company has filed a
registration statement on Form S-8 under the Securities Act covering the sale
of the 2,200,000 shares of Common Stock reserved for issuance under the
Company's 1996 Special Stock Option Plan and Agreement. The Company intends to
file another a registration statement on Form S-8 under the Securities Act
covering the sale of an additional 550,000 shares of Common Stock which have
been reserved for issuance under the Company's 1996 Basic Stock Option and
Stock Appreciation Rights Plan.
<PAGE>
POSSIBLE VOLATILITY OF SECURITIES PRICES
The trading prices of the Company's securities could be subject to
wide fluctuations in response to variations in operating results which may be
affected by variations from period-to-period in the number of motion pictures
for which the Company acquires distribution rights and the number of motion
pictures which the Company distributes. The operating results of the Company
also may be affected by the release schedule of the motion pictures
distributed by the Company, the commercial success of such motion pictures and
other events or factors. In addition, the stock market has experienced
significant price and volume fluctuations which have affected the market price
for many companies and which have often been unrelated to the operating
performance of these companies. These broad market fluctuations may adversely
affect the market price of the Company's securities. In addition, factors not
within the control of the Company, including public statements from securities
analysts and others concerning the Company's operations, public acceptance of
the motion pictures distributed by the Company, interest rates and changes in
general economic conditions, could also have a significant impact on the
future market prices for the Company's securities, which may be volatile.
POTENTIAL ADVERSE IMPACT OF ANTI-TAKEOVER PROVISIONS
The Company's Restated Certificate of Incorporation, the Bylaws of
the Company and the provisions of the DGCL contain provisions that may be
deemed to have the effect of discouraging a third party from pursuing a
non-negotiated takeover of the Company because they have the effect of
delaying, deterring or preventing a change in control of the Company. Such
provisions may have an adverse impact on the price of the securities of the
Company that are traded in the public market. The Company's Restated
Certificate of Incorporation authorizes the issuance of "blank check"
preferred stock with such rights and preferences as may be determined from
time to time by the board of directors of the Company, without stockholder
approval. In the event of issuance, the preferred stock could be utilized,
under certain circumstances, as a method of discouraging, delaying or
preventing a change in control of the Company even though such an attempt
might be economically beneficial to the stockholders of the Company. The
Company's Restated Certificate of Incorporation also provides for staggered
terms for members of the Company's Board of Directors. The Company is subject
to provisions of the DGCL, which, subject to certain exceptions, will prohibit
the Company from engaging in any "business combination" with a person who,
together with affiliates and associates, owns 15% or more of the Company's
Common Stock (an "Interested Stockholder") for a period of three years
following the date that such person became an Interested Stockholder, unless
the business combination is approved in a prescribed manner as was the Merger.
These provisions of Delaware law and of the Company's Restated Certificate of
Incorporation and Bylaws may have the effect of delaying, deterring or
preventing a change in control of the Company, may discourage bids for the
Company's Common Stock at a premium over market price and may adversely affect
the market price, and the voting and other rights of the holders, of the
Company's Common Stock. In addition, the acceleration of vesting of options
granted under the Company's Stock Option Plans in the event of a change in the
ownership or control of the Company may be seen as an anti-takeover provision
and may have the effect of discouraging a merger proposal, a takeover attempt
or other efforts to gain control of the Company.
DIVIDENDS UNLIKELY
The Company has not paid any dividends on shares of its Common Stock
to date. The payment of cash dividends will be contingent upon the Company's
consolidated revenues and earnings, if any, capital requirements and general
financial condition. The payment of any dividends will be subject to the
discretion of the Company's Board of Directors, and it is unlikely that cash
dividends will be paid in the foreseeable future as it is currently
anticipated that available cash will be utilized to further the growth of the
Company. In addition, certain covenants in the credit facility of the Company
substantially restrict the payment of cash dividends.
SELLING STOCKHOLDERS
The table below sets forth the number of shares of Common Stock owned
by each of the Selling Stockholders as of October 31, 1996, the number of
Shares to be sold pursuant to this offering, and the number of shares of
Common Stock to be retained by each of the Selling Stockholders if all the
Shares offered hereby are in
<PAGE>
fact sold. Each Selling Stockholder is an executive officer of the Company, a
member of the Company's Board of Directors and a greater than ten percent
(10%) stockholder of the Company.
The Shares subject to this Prospectus may be offered from time to
time for sale by the Selling Stockholders named below:
<TABLE>
<CAPTION>
Number of
Shares Number of Percentage
of Shares of
Common Number of to be Owned Outstanding
Stock Shares after Common
Beneficially Offered for Consumma- Stock to be
Name of Owned prior Sale tion of the Owned after
Selling Stockholder to Sale Hereby Sale the Sale (2)
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Ellen Dinerman Little(1) 4,227,778 1,100,000 3,177,778 39.8%
Robert B. Little(1) 4,227,778 1,100,000 3,177,778 39.8%
Total 5,377,778 2,200,000 3,177,778 39.8%
</TABLE>
- ------------------
(1) Includes (i) the 2,928,218 shares of Common Stock held by Ms. Little
and Mr. Little as community property; (ii) a voting proxy held by Ms.
Little and Mr. Little with respect to 249,560 shares of Common Stock
owned by William F. Lischak; and (iii) 1,100,000 shares of Common
Stock subject to options granted to such person under the 1996
Special Stock Option Plan and Agreement (the "Plan"), of which
100,000 shares are currently exercisable (but does not include shares
of Common Stock subject to options granted to such person's spouse
under the Plan).
(2) Based upon 5,777,778 shares of Common Stock outstanding. Excludes
options and warrants which are exercisable for shares of Common Stock
except that options held by Ms. Little and Mr. Little are deemed to
be outstanding for the purpose of calculating the number and
percentage beneficially owned in the table above.
PLAN OF DISTRIBUTION
The Company will receive no proceeds from the sale of the Shares
pursuant to this offering. The Shares offered hereby may be sold by the
Selling Stockholders from time to time through broker-dealer transactions
effected on the OTC Bulletin Board at market prices prevailing at the time of
sale. The broker-dealers participating in such transactions may act as agent
or may acquire the Shares as principal. Any broker-dealer acting as agent may
receive commissions from the Selling Stockholders and/or the purchasers of the
Shares for whom such broker-dealers are acting as agent. Usual and customary
brokerage fees will be paid by the Selling Stockholders. Broker-dealers may
agree with the Selling Stockholders to sell a specified number of Shares at a
stipulated price per Share and, to the extent such broker-dealer is unable to
do so as agent for the Selling Stockholders, to purchase as principal any
unsold Shares at the price required to fulfill the broker-dealer commitment to
the Selling Stockholders. Broker-dealers who acquire the Shares as principal
may subsequently resell such Shares from time to time (including sales to or
through other broker-dealers) in transactions effected on the OTC Bulletin
Board or through negotiated transactions or otherwise, at market prices
prevailing at the time of sale or at negotiated prices. In connection with
such resales, the broker-dealer may pay to or receive from the purchasers of
the Shares compensation in the form of discounts, concessions or commissions,
which may, as to a particular broker-dealer, be in excess of customary
commissions.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed broker-dealers. In addition, in certain states the
Shares may not be
<PAGE>
sold unless they have been registered or qualified for sale in the applicable
state or unless there has been compliance with an applicable exemption from
such registration or qualification requirements.
The Selling Stockholders and any broker-dealers who participate with
the Selling Stockholders in the distribution of the Shares may under certain
circumstances be deemed to be "underwriters" within the meaning of the
Securities Act. In such event, the Selling Stockholders may indemnify any such
broker-dealer against certain liabilities, including liabilities arising under
the Securities Act. Any commissions received by the broker-dealers
participating in the distribution and any profit on the resale of the Shares
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act.
Pursuant to applicable rules and regulations under the Exchange Act,
any person engaged in the distribution of the Shares may not simultaneously
engage in market making activities with respect to the Company's Common Stock
for a period of two business days prior to the commencement of such
distribution. In addition and without limiting the foregoing, each Selling
Stockholder will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder, including (without limitation) Rules
10b-6 and 10b-7. Accordingly, each of the Selling Stockholders shall not,
during the period such Selling Stockholder may be engaged in a distribution of
the Shares offered hereby, (i) engage in any stabilization activity in
connection with the Company's securities or (ii) bid for or purchase any of
the Company's securities or any rights to acquire such securities or attempt
to induce any person to purchase any of the Company's securities or rights to
acquire such securities, other than as permitted under the Exchange Act.
Each of the Selling Stockholders shall furnish each broker-dealer
through whom the Shares offered hereby may be sold such copies of this
Prospectus as such person may require.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for the
Company by Brobeck, Phleger & Harrison LLP, New York, New York.
EXPERTS
The financial statements of EMAC incorporated herein by reference
have been audited by BDO Seidman, LLP, independent certified public
accountants, to the extent and for the periods set forth in their report
incorporated herein by reference, and are incorporated herein in reliance upon
such report given upon the authority of said firm as experts in auditing and
accounting.
The financial statements of Pre-Merger Overseas as of December 31, 1995
and 1994 and for each of the three years in the period ended December 31, 1995
incorporated in this Registration Statement by reference to the definitive proxy
statement dated September 25, 1996 have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Overseas Filmgroup, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended November 30, 1995 filed with the SEC on February
28, 1996;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
fiscal quarters ended February 29, 1996, May 31, 1996 and
August 31, 1996, filed with the SEC on April 15, 1996, July
15, 1996, and October 15, 1996, respectively; and the
Registrant's Form 10-Q/A amending the Quarterly Report on
Form 10-Q for the fiscal quarter ended May 31, 1996;
(c) The Registrant's current report on Form 8-K filed with the
SEC on November 12, 1996;
(d) The Registrant's definitive proxy statement filed with the
SEC on September 27, 1996, in which there is set forth
audited financial statements for the Registrant's fiscal
years ended November 30, 1994 and November 30, 1995; and
(e) The Registrant's Registration Statement No. 0-25308 on Form
8-A filed with the SEC on December 21, 1994, in which there
is described the terms, rights and provisions applicable to
the Registrant's outstanding Common Stock, as such terms,
rights and provisions have been amended by certain exhibits
to the Company's Current Report on Form 8-K filed with the
SEC on November 12, 1996.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any
subsequently filed document which also is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers
Subsection (a) of Section 145 of the Delaware General Corporation Law
("DGCL") empowers a corporation 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, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner 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.
Subsection (b) of Section 145 empowers a corporation 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 right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted
in any of the capacities set forth above, against expenses (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
interests of the corporation, except that no indemnification may be made in
respect to any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful on the merits or otherwise in the defense
of any such action, suit or proceeding referred to in subsections (a) and (b)
of Section 145 or in the defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith; that the indemnification
provided for by Section 145 shall not be deemed exclusive of any other rights
which the indemnified party may be entitled; that indemnification provided by
Section 145 shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of such person's heirs, executors and
administrators; and empowers the corporation to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have
the power to indemnify him against such liabilities under Section 145.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of the director (i) for
any 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) under Section 174
of the DGCL, or (iv) for any transaction from which the director derived an
improper personal benefit.
The Company's Certificate of Incorporation provides that directors of
the Company shall not be personally liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the directors' duty of loyalty to the Company
or its stockholders; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii) under
Section 174 of the DGCL relating to prohibited dividends or distributions or
the repurchase or redemption of stock; or (iv) for any transaction from which
the director derives an improper personal benefit. If the DGCL is amended to
authorize further elimination or limitation of directors' liability, then the
liability of directors of the Company shall automatically be limited to the
fullest extent provided by law. The Company's Certificate of Incorporation and
Bylaws also contain provisions to indemnify the directors, officers, employees
or other agents to the fullest extent permitted by the DGCL. These provisions
may have the practical effect in certain cases of eliminating the ability of
stockholders to collect monetary damages from directors.
<PAGE>
Each of the directors and executive officers of the Company has
entered into an indemnity agreement with the Company under which the Company
will be obligated to indemnify them, to the fullest extent permitted by law,
for acting in such capacity.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Number Exhibit
4.1 Form of Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to the Registrant's Current
Report on Form 8-K filed with the Securities and
Exchange Commission on November 12, 1996 (the "Form
8-K").
4.2 Form of certificate evidencing the Registrant's warrants
(incorporated by reference to Exhibit 4.2 of the
Registrant's Registration Statement on Form S-1,
Registration Number 33-83624 (the "Form S-1").
4.3 Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to the Form 8-K).
4.4 Bylaws (incorporated by reference to Exhibit 3.2 to the
Form 8-K).
4.5 Form of Unit Purchase Option granted to Underwriters
(incorporated by reference to Exhibit 4.3 to the
Form S-1).
4.6 Warrant Agreement between Continental Stock Transfer &
Trust company and the Company (incorporated by reference
to Exhibit 4.4 of the Form S-1).
4.7 Letter Agreement amending Unit Purchase Options, dated
October 28, 1996 (incorporated by reference to Exhibit
4.5 to the Form 8-K).
4.8 Warrant issued to Jefferson Capital Group, Ltd.
(incorporated by reference to Exhibit 4.8 to the Form
8-K).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Brobeck, Phleger & Harrison LLP is contained
in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of
this Registration Statement.
99.1 1996 Special Stock Option Plan and Agreement
(incorporated by reference to Exhibit 99.1 to the
Form 8-K).
Item 9. Undertakings
A. The undersigned 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) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the "1933 Act"), (ii) to
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement and (iii) to include
any material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement; provided, however, that clauses
(1)(i) and (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 Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act
that are incorporated by reference into this Registration Statement; (2) that
for the purpose of determining any liability under the 1933 Act each such
post-effective amendment shall
<PAGE>
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; and (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 Registrant's
1996 Special Stock Option Plan and Agreement.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that
is incorporated by reference into this 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 1933 Act
may be permitted to directors, officers, or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6, or
otherwise, the Registrant has been advised that, in the opinion of the SEC,
such indemnification is against public policy as expressed in the 1933 Act,
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
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 1933
Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registrant 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 Los Angeles, State of
California on this 27th day of November 1996.
OVERSEAS FILMGROUP, INC.
By: /s/ Ellen Dinerman Little
----------------------------------
Ellen Dinerman Little
Co-Chairman, President and
Co-Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Overseas
Filmgroup, Inc., a Delaware Corporation, do hereby constitute and appoint
Ellen Dinerman Little, Robert B. Little and William F. Lischak and each of
them, the lawful attorneys-in-fact and agents with full power and authority to
do any and all acts and things and to execute any and all instruments which
said attorneys and agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and
authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms all that
said attorneys and agents, or any one of them, shall do or cause to be done by
virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed
this Power of Attorney as of the date indicated.
Pursuant to the requirements of the 1933 Act, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Ellen Dinerman Little Co-Chairman, President and November 27, 1996
- ------------------------------------
Ellen Dinerman Little Co-Chief Executive Officer
(Co-Principal Executive Officer)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Robert B. Little Co-Chairman and Co-Chief Executive November 27, 1996
- ------------------------------------
Officer (Co-Principal Executive
Robert B. Little Officer)
/s/ William F. Lischak Chief Operating Officer, Chief Financial November 27, 1996
- ------------------------------------
Officer, Secretary and Director
William F. Lischak (Principal Financial and Accounting
Officer)
/s/ Stephen K. Bannon Director November 27, 1996
- ------------------------------------
Steven K. Bannon
/s/ Scot K. Vorse Director November 27, 1996
- ------------------------------------
Scot K. Vorse
/s/ Jeffrey A. Rochlis Director November 27, 1996
- ------------------------------------
Jeffrey A. Rochlis
/s/ Alessandro Fracassi Director November 27, 1996
- ------------------------------------
Alessandro Fracassi
</TABLE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
OVERSEAS FILMGROUP, INC.
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Number Exhibit
------ -------
<S> <C>
4.1 Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the
Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission
on November 12, 1996 (the "Form 8-K").
4.2 Form of certificate evidencing the Registrant's warrants
(incorporated by reference to Exhibit 4.2 of the
Registrant's Registration Statement on Form S-1,
Registration Number 33-83624 (the "Form S-1").
4.3 Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Form 8-
K).
4.4 Bylaws (incorporated by reference to Exhibit 3.2 to the Form 8-K).
4.5 Form of Unit Purchase Option granted to Underwriters (incorporated by reference to Exhibit
4.3 to the Form S-1).
4.6 Warrant Agreement between Continental Stock Transfer & Trust company and the Company
(incorporated by reference to Exhibit 4.4 of the Form S-1).
4.7 Letter Agreement amending Unit Purchase Options, dated October 28, 1996 (incorporated by
reference to Exhibit 4.5 to the Form 8-K).
4.8 Warrant issued to Jefferson Capital Group, Ltd. (incorporated by reference to Exhibit 4.8 to
the Form 8-K).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 1996 Special Stock Option Plan and Agreement (incorporated by reference to Exhibit 99.1 to
the Form 8-K).
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EXHIBIT 5
Opinion and consent of Brobeck, Phleger & Harrison LLP
November 27, 1998
Overseas Filmgroup, Inc.
8800 Sunset Boulevard
Los Angeles, CA 90069
Re: Registration Statement for Offering of
2,200,000 Shares of Common Stock
--------------------------------
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of 2,200,000 shares
of the Common Stock of Overseas Filmgroup, Inc. (the "Company") under the
Company's 1996 Special Stock Option Plan. We advise you that, in our opinion,
when such shares have been issued and sold pursuant to the applicable
provisions of the 1996 Special Stock Option Plan and in accordance with the
Registration Statement, such shares will be duly authorized, validly issued,
fully paid and non-assessable shares of the Company's Common Stock.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Overseas Filmgroup, Inc.
Los Angeles, California
We hereby consent to the incorporation by reference in the
Prospectus constituting a part of this Registration Statement on Form S-8 of
our report dated January 19, 1996, relating to the financial statements of
Entertainment/media Acquisition Corporation appearing in the Company's Annual
Report on Form 10-K for the year ended November 30, 1995.
We also consent to the reference to us under the caption
"Experts" in the Prospectus.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
New York, New York
November 26, 1996
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 8, 1996, which appears on page
F-11 of the definitive proxy statement dated September 25, 1996. We also consent
to the reference to us under the heading "Experts" in such Registration
Statement.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Los Angeles, California
November 27, 1996
