AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 5, 1997
REGISTRATION NO. 333-13721
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
FOUR MEDIA COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7819 95-4599440
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
2813 WEST ALAMEDA AVENUE
BURBANK, CA 91505-4455
(818) 840-7000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
ROBERT T. WALSTON
FOUR MEDIA COMPANY
2813 WEST ALAMEDA AVENUE
BURBANK, CA 91505-4455
TEL: (818) 840-7000
FAX: (818) 846-5197
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPIES TO:
YVONNE E. CHESTER, ESQ. SCOTT T. SMITH, ESQ.
TROY & GOULD PROFESSIONAL CORPORATION PILLSBURY MADISON & SUTRO LLP
1801 CENTURY PARK EAST, SUITE 1600 2700 SAND HILL ROAD
LOS ANGELES, CALIFORNIA 90067 MENLO PARK, CALIFORNIA 94025-7111
TEL: (310) 553-4441 TEL: (415) 233-4500
FAX: (310) 201-4746 FAX: (415) 233-4545
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO 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 of
1933, as amended ("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, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
TITLE OF EACH CLASS OF PROPOSED MAXIMUM
SECURITIES AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED PRICE(1) REGISTRATION FEE
- ------------------------------------------------------------------------------
Common Stock, $.01 par value........... $97,750,000 $29,622(2)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Previously paid.
----------------
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.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth an itemized statement of all expenses to be
incurred in connection with the issuance and distribution of the securities
that are the subject of this Registration Statement. All amounts shown, other
than the Securities and Exchange Commission registration fee and the NASD
filing fee, are estimates only.
Securities and Exchange Commission registration fee........... $ 29,622
NASD filing fee............................................... 10,275
Nasdaq National Market listing fee............................ 40,000
Printing expenses............................................. 125,000
Transfer agent fees........................................... 5,000
Legal fees and expenses....................................... 675,000
Accounting fees and expenses.................................. 300,000
"Blue sky" fees and expenses.................................. 30,000
Miscellaneous expenses........................................ 185,103
IPO insurance premium......................................... 700,000*
----------
Total....................................................... $2,100,000
==========
- --------------------
*TSP will pay $300,000 and the Company will pay $400,000 of the IPO insurance
premium.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation and the Bylaws of the Company provide for
the indemnification of directors and officers to the fullest extent permitted
by the General Corporation Law of the State of Delaware (the "GCL").
Section 145 of the GCL authorizes indemnification when a person is made a
party to any proceeding by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation or was serving as a
director, officer, employee or agent of another enterprise, at the request of
the corporation, and if such person acted in good faith and in a manner
reasonably believed by him or her to be in, or not opposed to, the best
interests of the corporation. With respect to any criminal proceeding, such
person must have had no reasonable cause to believe that his or her conduct
was unlawful. If it is determined that the conduct of such person meets these
standards, he or she may be indemnified for expenses incurred and amounts paid
in such proceeding if actually and reasonably incurred by him or her in
connection therewith.
If such a proceeding is brought by or on behalf of the corporation (i.e., a
derivative suit), such person may be indemnified against expenses actually and
reasonably incurred if he or she acted in good faith and in a manner
reasonably believed by him or her to be in, or not opposed to, the best
interests of the corporation. There can be no indemnification with respect to
any matter as to which such person is adjudged to be liable to the
corporation; however, a court may, even in such case, allow such
indemnification to such person for such expenses as the court deems proper.
Where such person is successful in any such proceeding, he or she is entitled
to be indemnified against expenses actually and reasonably incurred by him or
her. In all other cases, indemnification is made by the corporation upon
determination by it that indemnification of such person is proper because such
person has met the applicable standard of conduct.
The Underwriting Agreement, the form of which is included as Exhibit 1.1 to
this Registration Statement, provides that the Company shall indemnify the
Underwriters under certain circumstances and the Underwriters shall indemnify
the officers and directors of the Company under certain circumstances.
II-1
The Company has entered into separate but identical indemnity agreements
(the "Indemnity Agreements") with each director and executive officer of the
Company (the "Indemnitees"). The Indemnity Agreements provide that the Company
will indemnify each Indemnitee against payment of and liability for any and
all expenses actually and reasonably incurred by the Indemnitee in defending
or investigating a claim, by reason of the fact that the Indemnitee is or was
a director and/or officer of the Company or is or was serving at the request
of the Company as a director, officer, employee or agent of another
corporation, partnership, or other enterprise, provided it is determined that
the Indemnitee acted in good faith and reasonably believed his actions to be
in the best interests of the Company.
The Company has agreed to purchase officers' and directors' insurance
covering liability for acts by such persons in their capacity as a director
and/or officer of the Company. Such insurance policy is expected to cost
approximately $600,000 and will cover a period of three years.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
On October 1, 1996, the Company sold 100,000 shares of Common Stock to
Technical Services Partners, L.P., a Delaware limited partnership ("TSP"), in
consideration for $1,000, and on October 17, 1996, the Company issued
5,900,000 shares of Common Stock to TSP in exchange for 1,000 shares of common
stock of 4MC Burbank. On November 19, 1996 the Company distributed a stock
dividend to TSP of 475,000 shares of its Common Stock. The general partner of
TSP is Technical Services Holdings Inc. ("Holdings"), a corporation of which
all of the voting capital stock is owned by Steinhardt Partners, L.P. The non-
voting capital stock of Holdings is owned by Institutional Partners, L.P.,
S.P. International S.A., Steinhardt Overseas Fund, Ltd, Compact Video Group,
Inc., Image Transform Inc., Compact Video Services, Inc. and Meridian Studios,
Inc. The managing general partner of Steinhardt Partners, L.P. is Michael
Steinhardt. The shares issued on October 1, October 17, and November 19, 1996
were issued pursuant to exemptions available under Section 4(2) of the
Securities Act of 1933, as amended (the "Securities Act").
The following table represents stock options granted within the past three
years:
AMOUNT OF
DATE ISSUED SECURITYHOLDER TITLE OF SECURITIES SECURITIES CONSIDERATION
----------- -------------- ------------------- ---------- ------------------------
November 19, 1996 Officer Options to purchase 100,000 Exercise price is $11.70
Common Stock per share
Effective date of Directors Options to purchase 200,000 Exercise price is the
Registration Common Stock initial public offering
Statement price per share in this
offering
Effective date of Director Nominees Options to purchase 200,000 Exercise price is the
Registration Common Stock initial public offering
Statement price per share in this
offering
II-2
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS
(a) The following exhibits, which are furnished with this Registration
Statement or incorporated herein by reference, are filed as part of this
Registration Statement:
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
1.1 Form of Underwriting Agreement.(3)
3.1 Certificate of Incorporation of the Company.(1)
3.2 Bylaws of the Company.(1)
4.1 Specimen Common Stock Certificate.(3)
5.1 Opinion of Troy & Gould Professional Corporation.(3)
10.1 Four Media Company 1997 Stock Plan and Stock Option Agreement.(2)
10.2 Four Media Company 1997 Director Option Plan and Director Stock Plan
Stock Option Agreement, as amended.(3)
10.3 Form of Indemnity Agreement between the Company and each of its
officers and directors.(1)
10.4 Agreement dated as of February 13, 1995 between MTV Asia LDC and Four
Media Company Asia PTE. Ltd.+(2)
10.5 Guaranty by Viacom International Inc. of MTV Asia's obligations to
Four Media Company Asia PTE Ltd. dated February 13, 1995.(1)
10.6 Guaranty by Four Media Company of obligations of Four Media Company
Asia PTE Ltd. to MTV Asia dated February 13, 1995.(1)
10.7 January 18, 1996 Amendment Letter re Agreement dated as of February
13, 1995 between MTV Asia LDC and Four Media Company Asia PTE.
Ltd.+(1)
10.8 Uplink-Playback Service Deal Memorandum between TVN Entertainment
Corporation and Compact Video Services, Inc. dated November 20, 1989,
as amended.+(1)
10.9 Letter Agreement between Four Media Company and TVN Entertainment
Corporation dated March 18, 1996.+(1)
10.10 Agreement for Term Loan Facilities between The Hong Kong and Shanghai
Banking Corporation Limited and Four Media Company Asia PTE. Ltd.
dated February 22, 1995.(1)
10.10A Letter Agreement dated October 31, 1996 and Supplemental Loan
Agreement dated February 3, 1997, amending the Agreement for Term
Loan Facilities between The Hong Kong and Shanghai Banking
Corporation Limited and Four Media Company Asia PTE. Ltd. dated
February 22, 1995. (filed herewith)
10.11 Deed of Subordination between Four Media Company, Four Media Company
Asia PTE LTD and The Hong Kong and Shanghai Banking Corporation
Limited dated February 22, 1995.(1)
10.12 Deed of Debenture between Four Media Company Asia PTE LTD. and The
Hong Kong and Shanghai Banking Corporation Limited dated February 22,
1995.(1)
10.13 Deed of Assignment between Four Media Company Asia PTE LTD and The
Hong Kong and Shanghai Banking Corporation Limited dated February 22,
1995.(1)
10.14 Guarantee by Four Media Company of Four Media Company Asia PTE Ltd.
liabilities to The Hong Kong and Shanghai Banking Corporation Limited
dated February 16, 1995.(1)
10.15 Satellite Services Agreement re Transponder 7 between Global Access
Telecommunications Services, Inc. and Four Media Company dated April
12, 1996.(1)
10.16 Satellite Services Agreement re Transponder 5 between Global Access
Telecommunications Services, Inc. and Four Media Company dated April
12, 1996.(1)
II-3
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
10.17 Global Access Telecommunications Services, Inc. Standard Terms and
Conditions.(1)
10.18 August 28, 1996 Letter Amendment to the Satellite Services Agreement
re Transponder 5 dated April 12, 1996 and to the Satellite Services
Agreement re Transponder 7 dated April 12, 1996.(1)
10.19 Financing agreement between The CIT Group/Business Credit, Inc., The
CIT Group/Equipment Financing, Inc., 4MC-Burbank, Inc. and Digital
Magic Company dated October 17, 1996.(2)
10.20 Lease between Singapore Telecommunications Limited and Four Media
Company Asia PTE Ltd. commencing December 15, 1994.(1)
10.21 Office Building Lease between Ford Motor Credit Company and Four Media
Company dated August 1, 1994.(1)
10.22 Employment Agreement between the Company and Robert T. Walston dated
October 1, 1996, as amended.(3)
10.23 Employment Agreement between the Company and John H. Donlon dated as
of October 1, 1996.(2)
10.24 Employment Agreement between the Company and John H. Sabin dated as of
October 1, 1996.(2)
10.25 Employment Agreement between the Company and Gavin W. Schutz dated as
of October 1, 1996, as amended.(3)
10.26 Employment Agreement between the Company and Robert Bailey dated as of
October 1, 1996.(2)
10.27 Purchase and Sale Agreement and Escrow Instructions between C.P.
Private Partners, L.P.I. and Four Media Company dated July 29,
1996.(1)
10.28 August 1, 1996 Amendment Letter re Agreement dated as of February 13,
1995 between MTV Asia and Four Media Company Asia PTE Ltd.+(2)
10.29 Term Loan Agreement between Tokai Bank of California and Four Media
Company dated December 5, 1996.(3)
21.0 List of Subsidiaries.(1)
23.1 Consent of Coopers & Lybrand L.L.P. (filed herewith)
23.2 Consent of Troy & Gould Professional Corporation (contained in Exhibit
5.1).(3)
23.3 Consent of Paul Bricault. (filed herewith)
23.4 Consent of Thomas Wertheimer. (filed herewith)
24.1 Power of Attorney (contained in Part II).(1)
27.1 Financial Data Schedule.(1)
- --------------------
+ Portions of exhibits deleted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidentiality.
(1) Previously filed with the Company's Registration Statement filed October
8, 1996 (File No. 333-13721).
(2) Previously filed with Amendment No. 1 to the Company's Registration
Statement filed December 27, 1996.
(3) Previously filed with Amendment No. 2 to the Company's Registration
Statement filed February 4, 1997.
(b) Schedules are omitted since the required information is not present in
amounts sufficient to require submission of schedules or because the
information required is included in Registrant's Consolidated Financial
Statements and Notes thereto.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes 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.
(b) 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 foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification
II-4
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.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under 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.
(2) 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.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Burbank, State of California, on February 5, 1997.
Four Media Company
/s/ Robert T. Walston
By: _________________________________
ROBERT T. WALSTON CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert T. Walston Chairman of the February 5, 1997
- ------------------------------------- Board and Chief
ROBERT T. WALSTON Executive Officer
(Principal
Executive Officer)
* President and February 5, 1997
- ------------------------------------- Director
JOHN H. DONLON
/s/ John H. Sabin Vice President, February 5, 1997
- ------------------------------------- Chief Financial
JOHN H. SABIN Officer (Principal
Financial and
Accounting Officer)
and Director
* Vice President, February 5, 1997
- ------------------------------------- Chief Technology
GAVIN W. SCHUTZ Officer and
Director
* Vice President, February 5, 1997
- ------------------------------------- Director of
ROBERT BAILEY Marketing and
Director
* Director February 5, 1997
- -------------------------------------
SHIMON TOPOR
* Director February 5, 1997
- -------------------------------------
EDWARD KIRTMAN
/s/ Robert T. Walston
*By: ________________________________
ROBERT T. WALSTON,
AS ATTORNEY-IN-FACT
II-6
EXHIBIT
NUMBER EXHIBIT INDEX
------- -------------
1.1 Form of Underwriting Agreement.(3)
3.1 Certificate of Incorporation of the Company.(1)
3.2 Bylaws of the Company.(1)
4.1 Specimen Common Stock Certificate.(3)
5.1 Opinion of Troy & Gould Professional Corporation.(3)
10.1 Four Media Company 1997 Stock Plan and Stock Option Agreement.(2)
10.2 Four Media Company 1997 Director Option Plan and Director Stock Plan
Stock Option Agreement, as amended.(3)
10.3 Form of Indemnity Agreement between the Company and each of its
officers and directors.(1)
10.4 Agreement dated as of February 13, 1995 between MTV Asia LDC and Four
Media Company Asia PTE. Ltd.+(2)
10.5 Guaranty by Viacom International Inc. of MTV Asia's obligations to
Four Media Company Asia PTE Ltd. dated February 13, 1995.(1)
10.6 Guaranty by Four Media Company of obligations of Four Media Company
Asia PTE Ltd. to MTV Asia dated February 13, 1995.(1)
10.7 January 18, 1996 Amendment Letter re Agreement dated as of February
13, 1995 between MTV Asia LDC and Four Media Company Asia PTE.
Ltd.+(1)
10.8 Uplink-Playback Service Deal Memorandum between TVN Entertainment
Corporation and Compact Video Services, Inc. dated November 20, 1989,
as amended.+(1)
10.9 Letter Agreement between Four Media Company and TVN Entertainment
Corporation dated March 18, 1996.+(1)
10.10 Agreement for Term Loan Facilities between The Hong Kong and Shanghai
Banking Corporation Limited and Four Media Company Asia PTE. Ltd.
dated February 22, 1995.(1)
10.10A Letter Agreement dated October 31, 1996 and Supplemental Loan
Agreement dated February 3, 1997, amending the Agreement for Term
Loan Facilities between The Hong Kong and Shanghai Banking
Corporation Limited and Four Media Company Asia PTE. Ltd. dated
February 22, 1995. (filed herewith)
10.11 Deed of Subordination between Four Media Company, Four Media Company
Asia PTE LTD and The Hong Kong and Shanghai Banking Corporation
Limited dated February 22, 1995.(1)
10.12 Deed of Debenture between Four Media Company Asia PTE LTD. and The
Hong Kong and Shanghai Banking Corporation Limited dated February 22,
1995.(1)
10.13 Deed of Assignment between Four Media Company Asia PTE LTD and The
Hong Kong and Shanghai Banking Corporation Limited dated February 22,
1995.(1)
10.14 Guarantee by Four Media Company of Four Media Company Asia PTE Ltd.
liabilities to The Hong Kong and Shanghai Banking Corporation Limited
dated February 16, 1995.(1)
10.15 Satellite Services Agreement re Transponder 7 between Global Access
Telecommunications Services, Inc. and Four Media Company dated April
12, 1996.(1)
10.16 Satellite Services Agreement re Transponder 5 between Global Access
Telecommunications Services, Inc. and Four Media Company dated April
12, 1996.(1)
10.17 Global Access Telecommunications Services, Inc. Standard Terms and
Conditions.(1)
10.18 August 28, 1996 Letter Amendment to the Satellite Services Agreement
re Transponder 5 dated April 12, 1996 and to the Satellite Services
Agreement re Transponder 7 dated April 12, 1996.(1)
10.19 Financing agreement between The CIT Group/Business Credit, Inc., The
CIT Group/Equipment Financing, Inc., 4MC-Burbank, Inc. and Digital
Magic Company dated October 17, 1996.(2)
10.20 Lease between Singapore Telecommunications Limited and Four Media
Company Asia PTE Ltd. commencing December 15, 1994.(1)
10.21 Office Building Lease between Ford Motor Credit Company and Four Media
Company dated August 1, 1994.(1)
EXHIBIT
NUMBER EXHIBIT INDEX
------- -------------
10.22 Employment Agreement between the Company and Robert T. Walston dated
October 1, 1996, as amended.(3)
10.23 Employment Agreement between the Company and John H. Donlon dated as
of October 1, 1996.(2)
10.24 Employment Agreement between the Company and John H. Sabin dated as of
October 1, 1996.(2)
10.25 Employment Agreement between the Company and Gavin W. Schutz dated as
of October 1, 1996, as amended.(3)
10.26 Employment Agreement between the Company and Robert Bailey dated as of
October 1, 1996.(2)
10.27 Purchase and Sale Agreement and Escrow Instructions between C.P.
Private Partners, L.P.I. and Four Media Company dated July 29,
1996.(1)
10.28 August 1, 1996 Amendment Letter re Agreement dated as of February 13,
1995 between MTV Asia and Four Media Company Asia PTE Ltd.+(2)
10.29 Term Loan Agreement between Tokai Bank of California and Four Media
Company dated December 5, 1996.(3)
21.0 List of Subsidiaries.(1)
23.1 Consent of Coopers & Lybrand L.L.P. (filed herewith)
23.2 Consent of Troy & Gould Professional Corporation (contained in Exhibit
5.1).(3)
23.3 Consent of Paul Bricault. (filed herewith)
23.4 Consent of Thomas Wertheimer. (filed herewith)
24.1 Power of Attorney (contained in Part II).(1)
27.1 Financial Data Schedule.(1)
- --------------------
+ Portions of exhibits deleted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidentiality.
(1) Previously filed with the Company's Registration Statement filed October 8,
1996 (File No. 333-13721).
(2) Previously filed with Amendment No. 1 to the Company's Registration
Statement filed December 27, 1996.
(3) Previously filed with Amendment No. 2 to the Company's Registration
Statement filed February 4, 1997.