-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Jr/FplrbypXUsWAjHpuzyWujuy4Loejp37yUoGMHBs9FFHmIDWfvLBphgmV+CcA+ UABaVCd2KWE2jc4xBrfmAA== 0000890163-99-000423.txt : 19991206 0000890163-99-000423.hdr.sgml : 19991206 ACCESSION NUMBER: 0000890163-99-000423 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991203 EFFECTIVENESS DATE: 19991203 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW FRONTIER MEDIA INC /CO/ CENTRAL INDEX KEY: 0000847383 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MOTION PICTURE & VIDEO TAPE DISTRIBUTION [7822] IRS NUMBER: 841084061 STATE OF INCORPORATION: CO FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-92081 FILM NUMBER: 99768726 BUSINESS ADDRESS: STREET 1: 5435 AIRPORT BLVD STREET 2: SUITE 100 CITY: BOULDER STATE: CO ZIP: 80301 BUSINESS PHONE: 3034440632 FORMER COMPANY: FORMER CONFORMED NAME: NATIONAL SECURITIES HOLDING CORPORATION DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: STRATEGIC ACQUISITIONS INC DATE OF NAME CHANGE: 19600201 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on December 3, 1999 Registration Statement No. 333-__________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ____________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ____________________ NEW FRONTIER MEDIA, INC. ---------------------------------------------------- (Exact name of registrant as specified in its charter) COLORADO ------------------------------------------------------------ (State or other jurisdiction of incorporation or organization) 84-1084061 ---------------------------------- (I.R.S. Employer Identification No.) 5435 Airport Boulevard, Suite 100 Boulder, CO 80301 -------------------------------------- (Address of Principal Executive Offices) 1998 INCENTIVE STOCK PLAN 1999 INCENTIVE STOCK PLAN 1999 CONSULTANT STOCK PLAN -------------------------- (Full title of the Plans) Mark Kreloff, President and Chief Executive Officer New Frontier Media, Inc. 5435 Airport Boulevard, Suite 100, Boulder, CO 80301 Boulder, CO 80301 --------------------------------------------------------- (Name and address, including zip code of agent for service) (303) 786-8700 ----------------------------------------------------------- (Telephone number, including area code, of agent for service) COPIES TO: HANK GRACIN, ESQ. LEHMAN & EILEN LLP 50 CHARLES LINDBERGH BLVD., SUITE 505 UNIONDALE, NEW YORK 11553 CALCULATION OF REGISTRATION FEE
=================================================================================================================== PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION TO BE REGISTERED REGISTERED PER SHARE PRICE FEE - ------------------------------------------------------------------------------------------------------------------- Stock Options 750,000 (1) ---- ---- (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.0001 per share 750,000 (3)(4) $ 1.20 (5) $ 900,000 $ 250.20 - ------------------------------------------------------------------------------------------------------------------- Stock Options 1,500,000 (6) ---- ---- (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.0001 per share 1,500,000 (7)(8) $ 5.46 (5) $ 8,190,000 $2,276.82 - ------------------------------------------------------------------------------------------------------------------- Stock Options 422,000 (9) ---- ---- (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.0001 per share 500,000 (10) $ 2.38 (5) $ 1,190,000 $ 330.82 - ------------------------------------------------------------------------------------------------------------------- TOTAL $10,280,000 $2,857.84 =================================================================================================================== (1) Represents options previously granted or available for grant pursuant to the 1998 Incentive Stock Plan (the "1998 Plan") of New Frontier Media, Inc. (the "Registrant"). Each option entitles the holder thereof to purchase one share of the common stock, $.0001 par value, of the Registrant (the "Common Stock"). (2) No registration fee is required pursuant to Rule 457(h)(2). (3) Shares purchasable upon exercise of options previously granted or available for grant pursuant to the 1998 Plan. (4) Pursuant to Rule 416, includes an indeterminate number of shares of Common Stock which may become issuable pursuant to the anti-dilution provisions of the 1998 Plan. (5) Calculated solely for the purpose of determining the registration fee pursuant to Rule 457(h)(i) based upon the average exercise price. (6) Represents options previously granted or available for grant pursuant to the 1999 Incentive Stock Plan (the "1999 Plan") of the Registrant. Each option entitles the holder thereof to purchase one share of the Common Stock of the Registrant. (7) Shares purchasable upon exercise of options previously granted or available for grant pursuant to the 1999 Plan. (8) Pursuant to Rule 416, includes an indeterminate number of shares of Common Stock which may become issuable pursuant to the anti-dilution provisions of the 1999 Plan. (9) Represents options granted to consultants of the Registrant pursuant to the 1999 Consultant Stock Plan for services performed for the Registrant (the "Consultants' Options"). (10) Represents shares purchasable upon exercise of the Consultants' Options or issued pursuant to the 1999 Consultant Stock Plan.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents are incorporated by reference in this registration statement. (a) Registrant's Annual Report on Form 10-K/A-SB for the fiscal year ended March 31, 1999, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended. (b) Registrant's Quarterly Reports on Form 10-QSB for the fiscal quarters ended June 30, 1999, and September 30, 1999. (c) The description of Registrant's Common Stock contained in the Registration Statement on Form 8-A filed with the Commission on February 6, 1998 under Section 12 of the Securities Exchange Act of 1934, as amended. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereunder have been sold, or which deregisters all securities then remaining unsold under this registration statement, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Item 4. DESCRIPTION OF SECURITIES Not applicable; the class of securities to be offered is registered under Section 12 of the Securities Exchange Act of 1934, as amended. Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL None. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS (i) Article 3, Section 3.17 of the Company's First Amended and Restated Bylaws provides as follows: "SECTION 3.17 LIMITATIONS ON LIABILITY To the fullest extent permitted by the Colorado Business Corporation Act as the same exists or may hereafter be amended, a director of the corporation shall not be liable to the corporation or its stockholders for monetary damages for any action taken or any failure to take any action as a director. Notwithstanding the foregoing, a director will have liability for monetary damages for a breach or failure which involves: (i) a violation of criminal law; (ii) a transaction from which the director derived an improper personal benefit, either directly or indirectly; (iii) distributions in violation of the Colorado Business Corporation Act or the Articles of the corporation (but only to the extent provided by law); (iv) willful misconduct or disregard for the best interests of the corporation concerning any acts or omissions concerning any proceeding other than in the right of the corporation or a shareholder; or (v) reckless, malicious or wanton acts or omissions concerning any proceeding other than in the right of the corporation or of a shareholder. No repeal, amendment or modification of this Article, whether direct or indirect, shall eliminate or reduce its effect with respect to any act or omission of a director of the corporation occurring prior to such repeal, amendment or modification." (ii) Article 3, Section 3.18 of the Company's First Amended and Restated Bylaws provides as follows: "SECTION 3.18 INDEMNIFICATION Subject to and in accordance with the Colorado Business Corporation Act, and except as may be expressly limited by the Articles of Incorporation and any amendments thereto, the corporation shall indemnify any person: (i) made a party to any proceeding (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 corporation's request, as a director, officer, employee or agent or another corporation, or other enterprise; or (ii) who was or is a party to any proceeding by or in the right of the corporation, to procure a judgement in its favor 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. This indemnification shall be mandatory in all circumstances in which indemnification is permitted by law. The corporation may maintain indemnification insurance regardless of its power to indemnify under the Colorado Business Corporation Act. The corporation may make any other or further indemnification or advancement of expenses of any of the directors, officers, employees or agents under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his or her official capacity and to action in another capacity while holding such office, except an indemnification against material criminal or unlawful misconduct as set forth by statute, or as to any transaction wherein the director derived an improper personal benefit. Except to the extent reimbursement shall be mandatory in accordance herewith, the corporation shall have the right to refuse indemnification, in whole or in part, in any instance in which the person to whom indemnification would otherwise have been applicable, if he or she unreasonably refused to permit the corporation, at its own expense and through counsel of its own choosing, to defend him or her in the action, or unreasonably refused to cooperate in the defense of such action." Item 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. Item 8. EXHIBITS Exhibit Number Description of Document ------- -------------------------------------------------- 4.1 1998 Incentive Stock Plan* 4.2 1999 Incentive Stock Plan** 4.3 1999 Consultant Stock Plan*** 5.1 Opinion of Thorburn, Sakol & Throne*** 23.1 Consent of Spicer, Jeffries & Co.*** 23.2 Consent of Thorburn, Sakol & Throne (included in Exhibit 5.1 hereto). - ----------------------------- * Incorporated by reference to the Registrant's Definitive 14A Proxy Statement filed on August 7, 1998 ** Incorporated by reference to the Registrant's Definitive 14A Proxy Statement filed on September 28, 1999 *** Filed with this Registration Statement 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; (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, 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) do 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 Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 Registrant hereby undertakes that, 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 section 15(d) 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 that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant, the Registrant 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 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. 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 Boulder, Colorado, on the 1st day of December 1999. NEW FRONTIER MEDIA, INC. By /s/ Mark H. Kreloff MARK H. KRELOFF Chairman, Chief Executive Officer and President 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 date indicated. Signature Date /s/ Mark H. Kreloff December 1, 1999 - --------------------- Name: MARK H. KRELOFF Title: Chairman, Chief Executive Officer and President (Principal Executive Officer) /s/ Michael Weiner December 1, 1999 - --------------------- Name: MICHAEL WEINER Title: Executive Vice President, Secretary, Treasurer and Director /s/ Karyn Miller December 1, 1999 - --------------------- Name: KARYN MILLER Title: Chief Financial Officer (Principal Financial and Accounting Officer) /s/ Koung Y. Wong December 1, 1999 - --------------------- Name: KOUNG Y. WONG Title: Director /s/ Edward J. Bonn December 1, 1999 - --------------------- Name: EDWARD J. BONN Title: Director /s/ Bradley A. Weber December 1, 1999 - --------------------- Name: BRADLEY A. WEBER Title: Director /s/ Alan Isaacman December 1, 1999 - --------------------- Name: ALAN ISAACMAN Title: Director INDEX TO EXHIBITS Exhibit Number Description of Document ------- ------------------------------------------------ 4.1 1998 Incentive Stock Plan* 4.2 1999 Incentive Stock Plan** 4.3 1999 Consultant Stock Plan*** 5.1 Opinion of Thorburn, Sakol & Throne*** 23.1 Consent of Spicer, Jeffries & Co.*** 23.2 Consent of Thorburn, Sakol & Throne (included in Exhibit 5.1 hereto). - ------------------------ * Incorporated by reference to the Registrant's Definitive 14A Proxy Statement filed on August 7, 1998 ** Incorporated by reference to the Registrant's Definitive 14A Proxy Statement filed on September 28, 1999 *** Filed with the Registration Statement EX-4 2 1999 CONSULTANT STOCK PLAN EXHIBIT 4.3 1999 CONSULTANT STOCK PLAN I. Purpose of the Plan. The purpose of this Plan is to further the growth of New Frontier Media, Inc. and its subsidiaries (together being the "Company") by allowing the Company to compensate consultants and certain other persons providing bona fide services to the Company, through the award of New Frontier Media, Inc. common stock. II. Definitions. Whenever used in this Plan, the following terms shall have the meanings set forth in this Section: 1. "Award" means any grant of Common Stock made under this Plan. 2. "Board of Directors" means the Board of Directors of New Frontier Media, Inc. 3. "Code" means the Internal Revenue Code of 1986, as amended. 4. "Common Stock" means the common stock, $.0001 par value per share, of New Frontier Media, Inc. 5. "Date of Grant" means the day the Board of Directors authorizes the grant of an Award or such later date as may be specified by the Board of Directors as the date a particular Award will become effective. 6. "Participant" means any person or entity that renders bona fide services to the Company (including, without limitation, the following: a person employed by the Company in a key capacity; an officer or director of the Company; a person or company engaged by the Company as a consultant; or a lawyer, law firm, accountant or accounting firm; provided, however, that such services must not be in connection with the offer or sale of securities in a capital-raising transaction, or in connection with financial public relations or investor relations services. 7. "Subsidiary" means any corporation that is a subsidiary with regard to as that term is defined in Section 424(f) of the Code. III. Effective Date of the Plan. The effective date of this Plan is February 2, 1999. IV. Administration of the Plan. The Board of Directors will be responsible for the administration of this Plan, and will grant Awards under this Plan. Subject to the express provisions of this Plan, the Board of Directors shall have full authority and sole and absolute discretion to interpret this Plan, to prescribe, amend and rescind rules and regulations relating to it, and to make all other determinations which it believes to be necessary or advisable in administering this Plan. The determinations of the Board of Directors on the matters referred to in this Section shall be conclusive. The Board of Directors shall have sole and absolute discretion to amend this Plan. No member of the Board of Directors shall be liable for any act or omission in connection with the administration of this Plan unless it resulted from the member's willful misconduct. V. Stock Subject to the Plan. The maximum number of shares of Common Stock as to which Awards may be granted under this Plan is 500,000 shares. The Board of Directors may increase the maximum number of shares of Common Stock as to which Awards may be granted at such time as it deems advisable. VI. Persons Eligible to Receive Awards. Awards may be granted only to Participants. VII. Grants of Awards. Except as otherwise provided herein, the Board of Directors shall have complete discretion to determine when and to which Participant Awards are to be granted, and the number of shares of Common Stock as to which Awards granted to each Participant will relate. No grant will be made if, in the judgment of the Board of Directors, such a grant would constitute a public distribution within the meaning of the Securities Act of 1933, as amended (the "Act"), or the rules and regulations promulgated thereunder. VIII. Delivery of Stock Certificates. As promptly as practicable after authorizing the grant of an Award, New Frontier Media, Inc. shall deliver to the person who is the recipient of the Award, a certificate or certificates registered in that person's name, representing the number of shares of Common Stock that were granted. If applicable, each certificate shall bear a legend to indicate that the Common Stock represented by the certificate was issued in a transaction which was not registered under the Act, and may only be sold or transferred in a transaction that is registered under the Act or is exempt from the registration requirements of the Act. IX. Employment. Nothing in this Plan or in the grant of an Award shall confer upon any Participant the right to continue in the employ of the Company nor shall it interfere with or restrict in any way the rights of the Company to discharge any Participant at any time for any reason whatsoever, with or without cause. X. Laws and Regulations. 1. The obligation of New Frontier Media, Inc. to sell and deliver shares of Common Stock on the grant of an Award under this Plan shall be subject to the condition that counsel for New Frontier Media, Inc. be satisfied that the sale and delivery thereof will not violate the Act or any other applicable laws, rules or regulations. 2. This Plan is intended to meet the requirements of Rule 16b-3 in order to provide officers and directors with certain exemptions from Section 16(b) of the Securities Exchange Act of 1934, as amended. XI. Withholding of Taxes. If subject to withholding tax, the Company shall be authorized to withhold from an Participant's salary or other cash compensation such sums of money as are necessary to pay the Participant's withholding tax. The Company may elect to withhold from the shares to be issued hereunder a sufficient number of shares to satisfy the Company's withholding obligations. If the Company becomes required to pay withholding taxes to any federal, state or other taxing authority as a result of the granting of an Award and the Participant fails to provide the Company with the funds with which to pay that withholding tax, the Company may withhold up to 50% of each payment of salary or bonus to the Participant (which will be in addition to any other required or permitted withholding), until the Company has been reimbursed for the entire withholding tax it was required to pay. XII. Termination of the Plan. The Board of Directors may suspend or terminate this Plan at any time or from time to time, but no such action shall adversely affect the rights of a person granted an Award under this Plan prior to that date. XIII. Delivery of Plan. A copy of this Plan shall be delivered to all participants, together with a copy of the resolution or resolutions of the Board of Directors authorizing the granting of the Award and establishing the terms, if any, of participation. EX-5 3 REGISTRATION STATEMENT EXHIBIT 5.1 Board of Directors New Frontier Media, Inc. 5435 Airport Boulevard Suite 100 Boulder, CO 80301 December 1, 1999 RE: REGISTRATION STATEMENT ON FORM S-8 Gentlemen: We have acted as counsel to New Frontier Media, Inc. a Colorado corporation (the "Company"), in connection with the Company's Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended. The Registration Statement relates to 2,750,000 shares of the Company's common stock, par value $.0001 per share (the "Common Stock"), issuable upon the exercise of stock options granted, as well as stock options to be granted, pursuant to the Company's 1998 Incentive Stock Plan (the "1998 Plan"), the Company's 1999 Incentive Stock Plan (the "1999 Plan") and the Company's 1999 Consultant Stock Plan (the "Consultants' Plan") (the 1998 Plan, the 1999 Plan and the Consultants' Plan hereafter referred to as "the Plans"). As counsel to the Company, we have examined the Company's Certificate of Incorporation, as amended, the Company's By-laws, as amended, records of corporate proceedings, and such other documents as we have deemed necessary or appropriate as a basis for the opinions set forth below. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the accuracy and completeness of all documents submitted to us as copies and the authenticity of the originals of such latter documents. As to any facts material to such opinions which we did not independently establish or verify, we have relied upon statements or representations of officers and other representatives of the Company, public officials or others. Based on the foregoing, we are of the opinion that: 1. The Company has been duly organized, is validly existing and in good standing under the laws of the State of Colorado. 2. The shares of Common Stock issuable upon exercise of any options duly granted pursuant to the Plans have been duly and validly authorized and reserved for issuance, and, when duly issued and paid for in accordance with the stock option agreements between the Company and the individuals granted options pursuant to the Plans, will be duly and validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Sincerely, /s/ THORBURN, SAKOL & THRONE ---------------------------- THORBURN, SAKOL & THRONE EX-23 4 CONSENT EXHIBIT 23.1 SPICER, JEFFRIES & CO. Certified Public Accountants CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of New Frontier Media, Inc. and Subsidiaries of our report dated June 9, 1999, accompanying the consolidated financial statements of New Frontier Media, Inc. and Subsidiaries for the years ended March 31, 1999 and 1998 which is part of New Frontier Media, Inc.'s Annual Report on Form 10-KSB. /s/ SPICER, JEFFRIES & CO. - -------------------------- SPICER, JEFFRIES & CO. Denver, Colorado December 1, 1999 -----END PRIVACY-ENHANCED MESSAGE-----