As filed with the Securities and Exchange Commission on March 31,, 2000.
Registration No. 333-30722
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT No. 1 to
FORM S-1
REGISTRATION STATEMENT
under
the Securities Act of 1933
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ARTISAN ENTERTAINMENT INC.
(Exact name of registrant as specified in its charter)
Delaware 7822 04-3380164
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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2700 Colorado Avenue, 2nd Floor
Santa Monica, California 90404
Telephone: (310) 449-9200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Copies to:
Ken Schapiro Eva Herbst Davis Jonathan A. Schaffzin
Artisan Entertainment Inc. Kirkland & Ellis Cahill Gordon & Reindel
2700 Colorado Avenue, 2nd Floor 777 South Figueroa Street 80 Pine Street
Santa Monica, California 90404 Los Angeles, California 90017 New York, New York 10005
Telephone: (310) 449-9200 Telephone: (213) 680-8400 Telephone: (212) 701-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after this Registration Statement becomes
effective.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following is a statement of estimated expenses, to be paid solely by
Artisan, of the issuance and distribution of the securities being registered
hereby:
Securities and Exchange Commission registration fee.............. $ *
NASD filing fee.................................................. 14,500
Nasdaq National Market listing fee............................... *
Blue Sky fees and expenses (including attorneys' fees and
expenses)....................................................... *
Printing expenses................................................ *
Accounting fees and expenses..................................... *
Transfer agent's fees and expenses............................... *
Legal fees and expenses.......................................... *
Miscellaneous expenses........................................... *
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Total.......................................................... $ *
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* To be filed by amendment.
Item 14. Indemnification of Directors and Officers.
General Corporation Law
We are incorporated under the laws of the State of Delaware. Section 145
("Section 145") of the General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended (the "General Corporation Law"), inter
alia, provides that a Delaware corporation may indemnify any persons who were,
are or are threatened to be made, parties 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 such corporation),
by reason of the fact that such person is or was an officer, director, employee
or agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the corporation's best interests and, with respect
to any criminal action or proceeding, had no reasonable cause to believe that
his conduct was illegal. A Delaware corporation may indemnify any persons who
are, were or are threatened to be made, a party to any threatened, pending or
completed action or suit by or in the right of the corporation by reasons of
the fact that such person was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit, provided such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests, provided that no indemnification is permitted without judicial
approval if the officer, director, employee or agent is adjudged to be liable
to the corporation. Where an officer, director, employee or agent is successful
on the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who 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 or
enterprise, against any liability asserted against him and incurred by him in
any such capacity, arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him under Section 145.
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Amended and Restated Certificate of Incorporation and Bylaws
Our amended and restated certificate of incorporation and bylaws provides
for the indemnification of officers and directors to the fullest extent
permitted by the Delaware General Corporation Law.
Item 15. Recent Sales of Unregistered Securities.
During the last three years, Artisan has issued the following securities
without registration under the Securities Act of 1933, as amended (the
"Securities Act") (the following information does not reflect the stock split
and reclassification described in the registration statement):
(1) Artisan was acquired through a leveraged buyout by private investors
on July 9, 1997. In connection with the acquisition, Artisan issued:
(a) an aggregate of (i) 5,040,000 shares of class A common stock; and
(ii) 559,999.98 shares of class L common stock to a private
investor group, whose shares were subsequently transferred to
Audax Entertainment, L.P., for an aggregate of $10.0 million.
(b) an aggregate of (i) 2,520,000 shares of class A common stock; and
(ii) 280,000 shares of class L common stock to Alan D. Gordon for
an aggregate of $5.0 million.
(c) an aggregate of (i) 1,440,000 shares of class A common stock; and
(ii) 160,000 shares of class L common stock to CanPartners
Investments IV, LLC for an aggregate of $2.86 million.
(2) To finance a portion of the leveraged buyout, Artisan sold an
aggregate of $15.0 million aggregate principal amount of 13.5%
Senior Subordinated Notes due 2004 to CanPartners Investment IV, LLC
pursuant to a Note and Stock Purchase Agreement dated July 9, 1997.
The Company received cash of $12.1 million.
(3) During the year ended December 31, 1999, we sold an aggregate of (i)
201,542 shares of class A common stock; and (ii) 49,754 shares of
class L common stock pursuant to various Employment Agreements. In
accordance with the terms of those agreements, employees purchased
their shares for $0.9 million in cash.
(4) Artisan's board of directors adopted a Stock Option Plan in 1997.
Pursuant to that plan, Artisan has issued the following stock
options which vest over time and have exercise prices ranging from
$0.001 to $10.12:
(a) in 1997, options for an aggregate of 2,046,902 shares of common
stock.
(b) in 1998, options for an aggregate of 773,523 shares of common
stock.
(c) in 1999, options for an aggregate of 141,363 shares of common
stock.
(5) Artisan has also issued to following stock options:
(a) in 1998, options for an aggregate of 50,854 shares of common
stock to Wachsberger at a weighted average exercise price of
$3.86 per share.
(b) in 1998, options for an aggregate of 30,516 shares of common
stock to Hayward at a weighted average exercise price of $3.86
per share.
(c) in 1998, options for an aggregate of 20,344 shares of common
stock to Garrett at a weighted average exercise price of $3.86
per share.
(d) in 1998, options for an aggregate of 25,000 shares of common
stock to John J. Josephson pursuant to a consulting agreement
entered into in February 1998, at an exercise price of $0.001 per
share.
(e) in 1998, options for an aggregate of 500,000 shares to Allen &
Co. at an weighted average exercise price of $4.13 per share.
The sales and issuances listed above in paragraphs (1)(a), (1)(b), (1)(c)
and (2) were deemed exempt from registration under the Securities Act by virtue
of Section 4(2) thereof, as transactions not involving a
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public offering. The issuances of securities listed in paragraph (3) and (4)
above were deemed exempt from registration under the Securities Act by virtue
of Rule 701. The issuances of securities listed in paragraph (5) above were
deemed exempt from registration under the Securities Act by virtue of Section
4(2), as transactions not involving a public offering. Certain defined terms
used therein not otherwise defined have the meanings ascribed to them in the
prospectus, which forms a part of this registration statement.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
Exhibit
No. Description
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*1.1 Form of Underwriting Agreement.
*3.1 Amended and Restated Certificate of Incorporation of Artisan
Entertainment Inc.
*3.2 Amended and Restated Bylaws of Artisan Entertainment Inc.
*4.1 Specimen of Common Stock.
*4.2 Amended and Restated Stockholders Agreement, dated as of
, 2000, by and among Film Holdings Co., Audax
Entertainment, Alan D. Gordon, CanPartners Investments IV, LLC and
other stockholders.
*4.3 Option Certificate and Agreement granted by Film Holdings Co. to
Mark A. Curcio, dated as of July 10, 1997.
*4.4 Option Certificate and Agreement granted by Film Holdings Co. to
Amir J. Malin, dated as of July 10, 1997.
*4.5 Option Certificate and Agreement granted by Film Holdings Co. to
William H. Block, dated as of July 10, 1997.
*4.6 Promissory Note and Stock Pledge Agreement, dated as of July 10,
1997, by and between Film Holdings Co. and Mark A. Curcio.
*4.7 Promissory Note and Stock Pledge Agreement, dated as of July 10,
1997, by and between Film Holdings Co. and Amir J. Malin.
*4.8 Promissory Note and Stock Pledge Agreement, dated as of July 10,
1997, by and between Film Holdings Co. and William H. Block.
*4.9 Note and Stock Purchase Agreement, dated as of July 9, 1997, by
and between LIVE Film and Mediaworks Inc., Film Holdings Co. and
CanPartners Investments IV, LLC.
*4.10 Amendment Number One to the Note and Stock Purchase Agreement,
dated as of July 9, 1997, amended as of August 10, 1998, by and
among LIVE Film and Mediaworks Inc., Film Holdings Co. and
CanPartners Investments IV, LLC.
*4.11 Amended and Restated Amendment Number Two to the Note and Stock
Purchase Agreement, dated as of July 9, 1997, amended as of April
28, 1999, by and among LIVE Film and Mediaworks Inc., Film
Holdings Co. and CanPartners Investments IV, LLC.
*4.12 Amendment Number Three to the Note and Stock Purchase Agreement,
dated as of July 9, 1997, amended as of September 29, 1999, by and
among LIVE Film and Mediaworks Inc., Film Holdings Co. and
CanPartners Investments IV, LLC.
*5.1 Form of Opinion of Kirkland & Ellis.
*10.1 Employment Agreement, dated as of July 10, 1997, by and between
Film Holdings Co. and Mark A. Curcio.
*10.2 Employment Agreement, dated as of July 10, 1997, by and between
Film Holdings Co. and Amir J. Malin.
*10.3 Employment Agreement, dated as of July 10, 1997, by and between
Film Holdings Co. and William H. Block.
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Exhibit
No. Description
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*10.4 Employment Agreement, dated as of January 1, 1998, by and between
LIVE Film and Mediaworks Inc. and Steve Beeks.
*10.5 Employment Agreement, dated as of September 8, 1998, by and
between Artisan Entertainment Inc. and Glenn Ross.
*10.6 Employment Agreement, dated as of March 23, 1998, by and between
Artisan Entertainment Inc. and Nicolas van Dyk.
*10.7 Addendum to Employment Agreement, dated as of April 8, 1999, by
and between Artisan Entertainment Inc. and Nicolas van Dyk.
*10.8 Addendum to Employment Agreement, dated as of June 14, 1999, by
and between Artisan Entertainment Inc. and Nicolas van Dyk.
*10.9 Employment Agreement, dated as of September 8, 1998, by and
between Artisan Entertainment Inc. and James A. Keegan.
*10.10 Employment Agreement, dated as of April 1, 1998, by and between
LIVE Film and Mediaworks Inc. and Robert L. Denton.
*10.11 Amended and Restated Employment Agreement, dated as of February 1,
1999, by and between Artisan Entertainment Inc. and Ken Schapiro.
*10.12 Employment Agreement, dated as of August 1, 1997, by and between
LIVE Film and Mediaworks Inc. and Jeffrey Fink.
*10.13 Film Holdings Co. 1997 Stock Option Plan.
*10.14 Artisan Entertainment Inc. 2000 Stock Option Plan
*10.15 Lease, dated as of November 18, 1997, by and between 2700 Colorado
Partners, L.P. and LIVE Entertainment, Inc.
*10.16 Lease, dated as of December 1, 1999, by and between Hudson-
Chambers Company and Artisan Properties Inc.
10.17(1) Distribution Services Agreement Term Sheet by and between Artisan
Home Entertainment, Inc. and Twentieth Century Fox Home
Entertainment, Inc.
10.18 Amended and Restated Mutual Confidentiality and Non-Disclosure
Agreement, dated as of March 1, 1998, by and between Artisan Home
Entertainment, Inc. and Twentieth Century Fox Home Entertainment,
Inc.
10.19 First Amendment to Distribution Services Agreement Term Sheet,
dated as of August 1, 1998, by and between Artisan Home
Entertainment, Inc. and Twentieth Century Fox Home Entertainment,
Inc.
10.20(1) Omnibus Agreement, dated as of March 31, 1998, by and among
Patrick Wachsberger, Robert Hayward, David Garrett, The
Franco/Kiwi Alliance, Inc., Summit Entertainment, L.P., Artisan
Entertainment Inc. and Film Holdings Co.
10.21(1) Purchase Agreement, dated as of February 4, 2000, by and among The
Baby Einstein Company, LLC, Julie Aigner-Clark, William Clark and
Artisan Entertainment Inc.
10.22 Loan and Security Agreement, dated as of October 20, 1998, by and
between Artisan Pictures Inc. and Finova Capital Corporation.
10.23 Loan and Security Agreement, dated as of December 21, 1999 by and
between Artisan Pictures Inc. and Finova Capital Corporation.
10.24 Amended and Restated Credit Guaranty Agreement, dated as of July
9, 1997, as amended and restated as of August 10, 1998, by and
among Artisan Pictures Inc. and The Chase Manhattan Bank, as
Administrative Agent and Fronting Bank.
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Exhibit
No. Description
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10.25 Amendment Number One dated as of April 2, 1999 to the Amended and
Restated Credit Guaranty Agreement, dated as of July 9, 1997, as
amended and restated as of August 10, 1998, by and among Artisan
Pictures Inc., the guarantors named therein, the lenders named
therein and The Chase Manhattan Bank, as Administrative Agent and
Fronting Bank.
10.26 Amendment Number Two dated as of April 2, 1999 to the Amended and
Restated Credit Guaranty Agreement, dated as of July 9, 1997,
amended and restated as of August 10, 1998, by and among Artisan
Pictures Inc., the guarantors named therein, the lenders named
therein and The Chase Manhattan Bank, as Administrative Agent and
Fronting Bank.
10.27 Amendment Number Three dated as of August 18, 1999 to the Amended
and Restated Credit Guaranty Agreement, dated as of July 9, 1997,
as amended and restated as of August 10, 1998, by and among
Artisan Pictures Inc., the guarantors named therein, the lenders
named therein and The Chase Manhattan Bank, as Administrative
Agent and Fronting Bank.
10.28 Amendment Number Four dated as of September 30, 1999 to the
Amended and Restated Credit Guaranty Agreement, dated as of July
9, 1997, as amended and restated as of August 10, 1998, by and
among Artisan Pictures Inc., the guarantors named therein, the
lenders named therein and The Chase Manhattan Bank, as
Administrative Agent and Fronting Bank.
10.29 Amendment Number Five dated as of December 17, 1999 to the Amended
and Restated Credit Guaranty Agreement, dated as of July 9, 1997,
as amended and restated as of August 10, 1998, by and among
Artisan Pictures Inc., the guarantors named therein, the lenders
named therein and The Chase Manhattan Bank, as Administrative
Agent and Fronting Bank.
10.30 Credit and Security Agreement dated as of October 13, 1999 among
Artisan Film Investors Trust as borrower and the lenders named
therein with The Chase Manhattan Bank as Administrative Agent and
Fronting Bank, and Fleet Bank as Waiver Agent.
**21.1 Subsidiaries of Artisan Entertainment Inc.
**23.1 Consent of PricewaterhouseCoopers LLP.
*23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1).
**23.3 Consent of Kevin Magid.
**23.4 Consent of Joseph O'Donnell.
**23.5 Consent of John H. Josephson.
23.6 Consent of Amir Malin.
23.7 Consent of Paul Kagan Associates, Inc.
**27.1 Financial Data Schedule.
**27.2 Financial Data Schedule.
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* To be filed by amendment.
** Previously filed.
(1) Confidential treatment has been requested for certain portions of these
exhibits.
(b) Financial Statement Schedule.
Index
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Report of Independent Accountants on Financial Statement Schedule.. S-1
Report of Independent Accountants on Financial Statement Schedule.. S-2
Schedule II--Valuation and Qualifying Accounts..................... S-3
All other schedules for which provision is made in the applicable
accounting regulations of the Commission are not required under the related
instructions, are inapplicable or not material, or the information called for
thereby is otherwise included in the financial statements and therefore has
been omitted.
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Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To provide to the underwriter at the closing specified in the
underwriting agreement, certificates in such denominations and
registered in such names as required by the underwriter to permit
prompt delivery to each purchaser.
(2) For purposes of determining any liability under the Securities Act
of 1933 (the "Securities Act"), the information omitted from the
form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed
by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(3) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of
prospectus 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 20 or otherwise, 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
Securities 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
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Film Holdings
Co. (to be renamed Artisan Entertainment Inc.) has duly caused this
Registration Statement on Form S-1 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Santa Monica, State of
California, on March 31, 2000.
Film Holdings Co.
(to be renamed ARTISAN ENTERTAINMENT
INC.)
By: /s/ Mark A. Curcio
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Mark A. Curcio
Chief Executive Officer
* * * *
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to Registration Statement on Form S-1 has been signed by the
following persons in the capacities and on the dates indicated:
Signature Title Date
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* Chairman of the Board and March 31, 2000
____________________________________ Director
Geoffrey S. Rehnert
* Vice Chairman of the Board March 31, 2000
____________________________________ and Director
Alan D. Gordon
* Director March 31, 2000
____________________________________
Marc B. Wolpow
/s/ Mark A. Curcio Chief Executive Officer and March 31, 2000
____________________________________ Director (Principal
Mark A. Curcio Executive Officer)
* Director March 31, 2000
____________________________________
William S. Kirsch, P.C.
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Signature Title Date
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* Director March 31, 2000
____________________________________
Jeremy Hogue
* Director March 31, 2000
____________________________________
Mitchell R. Julis
/s/ JAMES E. KEEGAN Executive Vice President and March 31, 2000
____________________________________ Chief Financial Officer
James E. Keegan (Principal Financial
Officer)
/s/ ROBERT L. DENTON Senior Vice President of March 31, 2000
____________________________________ Finance and Chief
Robert L. Denton Accounting Officer
(Principal Accounting
Officer)
* The undersigned, by signing his name hereto, does hereby sign and execute
this Amendment No. 1 to Registration Statement on Form S-1 on behalf of the
above named officer and/or director.
*By: /s/ MARK A. CURCIO March 31, 2000
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Mark A. Curcio
Attorney-In-Fact
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