UNITED STATES OF AMERICA Before the SECURITIES AND EXCHANGE COMMISSION SECURITIES EXCHANGE ACT OF 1934 Release No. 38228 / February 3, 1997 ADMINISTRATIVE PROCEEDING File No. 3-9234 -------------------------------- : : ORDER INSTITUTING CEASE- In the Matter of : AND-DESIST PROCEEDINGS : PURSUANT TO SECTION 21C OF JERRY SILVA, : THE SECURITIES EXCHANGE ACT : OF 1934 AND FINDINGS AND Respondent. : ORDER OF THE COMMISSION : -------------------------------- I. The Commission deems it appropriate and in the public interest that public administrative proceedings be, and they hereby are, instituted pursuant to Section 21C of the Securities Exchange Act of 1934 ("Exchange Act") to determine whether Jerry Silva ("Silva") has failed to comply with Sections 13(d) and 16(a) of the Exchange Act, and Rules 13d-1, 13d-2, 16a-2, 16a-3 and former Rule 16a-1 thereunder. II. In anticipation of the institution of these administrative proceedings, Silva ("the Respondent") has submitted an Offer of Settlement which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceeding brought by or on behalf of the Commission or to which the Commission is a party, the Respondent, without admitting or denying the matters set forth herein, consents to the issuance of this Order Instituting Cease-and-Desist Proceedings Pursuant to Section 21C of the Securities Exchange Act of 1934 and Findings and Order of the Commission ("the Order"), and to the entry of the findings, and imposition of the remedial sanctions set forth below. ==========================================START OF PAGE 2====== III. On the basis of this Order and the Respondent's Offer of Settlement, the Commission finds the following: A. FACTS 1. Respondent Jerry Silva, age 62, a resident of Oceanside, New York, was a Director of Communications & Entertainment Corporation ("ComEnt") from December 1989, and the Vice Chairman of its Board of Directors from March 1992, until April 12, 1995. Silva was Chairman of the Board, Chief Operating Officer and President of ComEnt from December 1990 to March 1992, and was Co-Chairman of the Board and Executive Vice President of ComEnt from March 1990 through December 1990. Silva founded Double Helix Films, Inc. ("Double Helix") and served as its Chairman, Chief Executive Officer, and as a director, from 1983 until September 1990. Silva was a Director of Odyssey Entertainment LTD. ("Odyssey") from 1989. At times relevant to this proceeding, Silva acquired and owned more than ten percent of the equity securities of ComEnt and Double Helix. 2. Issuer ComEnt, a Nevada corporation with principal offices in Los Angeles, California, is engaged in the foreign distribution of films. In or about September 1990, Double Helix and Odyssey became wholly-owned subsidiaries of ComEnt. According to ComEnt's Annual Report on Form 10-K for the year ended June 30, 1996, ComEnt had total assets of over $2.4 million and a deficit shareholders' equity of $2.7 million. As of September 30, 1996, ComEnt had 2,591,242 shares of common stock issued and outstanding. ComEnt reported a net loss of $4.9 million, or $2.17 per share for its 1996 fiscal year. ComEnt's common stock has been registered with the Commission pursuant to Section 12 of the Exchange Act since December 19, 1990, and is traded on the OTC Bulletin Board. The common stock of Double Helix and Odyssey was registered pursuant to Section 12 of the Exchange Act at times relevant to this proceeding. B. APPLICABLE LAW Section 13(d) of the Exchange Act and Rule 13d-1 thereunder, in relevant part, provide that any person who, after acquiring directly or indirectly the beneficial ownership of any equity security of a company registered pursuant to Section 12 of the Exchange Act, is directly or indirectly the beneficial owner of more than 5 percent of such security, shall, within 10 days after such acquisition, file a Schedule 13D with the Commission and the ==========================================START OF PAGE 3====== appropriate Exchange. Rule 13d-2(a) requires that amendments to Schedule 13D be promtly filed if any material change to the facts set forth in the Schedule 13D occurs. A change of one percent or more in the reporting person's beneficial ownership of the specified securities is deemed material for the purposes of Rule 13d-2(a). Section 16(a) of the Exchange Act -[1]- requires that beneficial owners of more than ten percent of any class of any equity security registered pursuant to Section 12 of the Exchange Act and the officers and directors of the issuer of any such security (hereinafter "insider") file a statement with the Commission by the effective date of a registration statement filed pursuant to Section 12 of the Exchange Act, or within ten days of becoming such officer, director or beneficial owner, reporting the amount of all equity securities of such issuer of which they are a beneficial owner. Section 16(a) also requires an insider to file with the Commission within ten days after the close of each calendar month, if there has been a change in the insider's ownership of the issuer's equity securities during such month, a statement indicating such changes. The rules enacted pursuant to Section 16(a) provide that an initial statement by an insider is to be made on a Form 3 and subsequent statements of changes in beneficial ownership are to be made on a Form 4 or a Form 5. C. SILVA'S VIOLATIONS OF SECTIONS 13(d) AND 16(a) OF THE EXCHANGE ACT AND THE RULES THEREUNDER Silva did not timely file for periods ranging from one month to more than five years and ten months eight amendments to his Schedule 13D reporting changes in the information with respect to his beneficial ownership of the common stock of Double Helix and ComEnt. Silva failed for periods ranging from two weeks to more than five years and eight months to file eleven Forms 4 reporting ---------FOOTNOTES---------- -[1]- Until May 1, 1991, the statutory filing requirements under Section 16 of the Exchange Act were implemented by Rule 16a-1. On January 10, 1991, the Commission adopted a comprehensive revision of the rules under Section 16 which became effective on May 1, 1991. See Rel. 34-28869, 56 Fed. Reg. 7242 (Feb. 21, 1991). Among other things, these amendments place the implementation of the former Rule 16a-1 filing requirements in new Rules 16a-2 and 16a-3. Accordingly, this Order, at paragraph VI, orders that Silva cease-and-desist from violating Rules 16a-2 and 16a-3. ==========================================START OF PAGE 4====== changes in his beneficial ownership of ComEnt's securities, and failed for periods ranging from two years and two months to five years and two months to file four Forms 5. Silva failed for seven years and six months to file a Form 3 with the Commission reporting his holdings of Double Helix, and failed for periods ranging from three months and two weeks to four months and three weeks to file two Forms 4 reporting changes in his beneficial ownership of Double Helix's securities. Silva failed for three weeks to file a Form 3 with the Commission reporting his holdings of Odyssey. The combined value of Silva's stock transactions in late Form 4 filings for ComEnt and Double Helix is approximately $889,000. Silva's history of delinquency, compiled from the ownership reports he has filed with the Commission for ComEnt, Double Helix and Odyssey, is set forth below: ==========================================START OF PAGE 5====== Jerry Silva Forms 3 and 4 Odyssey Entertainment, LTD. January 2, 1990 through January 24, 1990 Date Month Price Due/ Apprx. of No. of Per Total Date Yrs/Mos/ Trans. Type Shares Share $Value Rec'd Wks.Late Form 3 12-89 Form 3 0 01-02-90 3w 01-24-90 Total value late reported transactions: $ 0 Double Helix Films, Inc. April 14, 1989 through October 18, 1996 Date Month Price Due/ Apprx. of No. of Per Total Date Yrs/Mos/ Trans. Type Shares Share* $Value Rec'd Wks.Late Form 3 04-89 Form 3 04-14-89 7y6m Not rec'd** Forms 4 06-89 Prvt. 14,000 .30 4,200 07-10- 89 4m3w Sale 12-04-89 01-90 Acq by 35,000 N/A N/A 02-12-90T Bonus 01-26-90 01-90 Sale 42,000 1.38 57,960 02-12-90T 01-26-90 ==========================================START OF PAGE 6====== Double Helix Films, Inc. 02-90 Buy 22,000 1.63 35,860 03-12- 90 3m2w 06-29-90 06-90 Sale 43,000 1.18 50,740 07-10-90T 07-10-90 06-90 Disp 35,000 N/A N/A 07-10-90T by Cancel 07-10-90 Bonus 09-90 Disp 773,684 N/R N/R 10-10-90T by exch 400 N/R N/R 09-13-90 or conv. Total value late reported transactions: $ 40,060 * = Price per share rounded off ** = Lateness calculated through October 18, 1996 Communications & Entertainment Corporation (formerly Double Helix Films, Inc. and Odyssey Entertainment, LTD.) December 19, 1990 through October 18, 1996 Date Month Price Due/ Apprx. of No. of Per Total Date Yrs/Mos/ Trans. Type Shares Share* $Value Rec'd Wks.Late Form 3 12-90 Form 3 1,163,931 12-19-90T 12-24-90 Forms 4, 5 01-91 Sale 50,000 1.07 53,498 02-11- 91 5y8m1w Not rec'd** ==========================================START OF PAGE 7====== Communications & Entertainment Corporation (formerly Double Helix Films, Inc. and Odyssey Entertainment, LTD.) 03-91 Sale 1,750 2.04 3,569 04-10- 91 5y6m1w 10,000 2.31 23,123 Not rec'd 5,000 2.38 11,871 38,563 04-91 Sale 30,000 2.37 71,246 05-10- 91 5y5m1w 5,000 2.44 12,188 Not rec'd 83,434 05-91 Sale 10,000 2.69 26,900 06-10-91T 10,000 2.69 26,900 06-13-91 10,000 2.69 26,900 10,000 2.63 26,300 06-91 Sale 7,000 2.94 20,580 07-10-91T 3,000 2.97 8,910 07-03-91 FY-91 Form 5 08-14-91 5y2m Not rec'd 07-91 Sale 10,000 2.75 27,500 08-12-91T 08-08-91 08-91 Sale 10,000 2.81 28,100 09-10-91T 2,000 2.81 5,620 09-09-91 5,000 2.94 14,700 1,000 2.38 2,380 4,000 2.25 9,000 5,000 2.31 11,550 08-91 Sale 5,000 2.14 10,695 09-10- 91 5y1m1w Not rec'd 09-91 Other 50,000 1.25 62,500 10-10-91T Acq. 10-11-91 10-91 Sale 100,000 2.12 212,496 11-12- 91 4y11m 3,250 2.89 9,402 Not rec'd 221,898 FY-92 Form 5 08-14-92 4y2m ==========================================START OF PAGE 8====== Not rec'd 08-92 Sale 5,000 2.56 12,800 09-10-92T 09-15-92 Communications & Entertainment Corporation (formerly Double Helix Films, Inc. and Odyssey Entertainment, LTD.) 09-92 Sale 5,000 2.00 9,996 10-13-924y 5,000 2.13 10,632 Not rec'd 5,000 2.16 10,785 31,413 10-92 Sale 5,000 2.28 11,406 11-10- 92 3y11m1w 5,000 2.31 11,559 Not rec'd 22,965 FY-93 Form 5 08-16-93 3y2m Not rec'd 08-93 Sale 40,000 1.56 62,480 09-10- 93 3y1m 60,000 1.56 93,750 Not rec'd 156,230 03-94 Sale 2,000 1.44 2,880 04-11- 94 11m2w 10,000 1.47 14,700 03-29-95 35,000 1.38 48,300 10,000 1.41 14,100 10,000 1.50 15,000 10,000 1.53 15,300 10,000 1.47 14,700 13,000 1.38 17,940 142,920 FY-94 Form 5 08-15-94 2y2m Not rec'd 01-95 Sale 10,000 .07 700 02-10- 95 1m2w 20,000 .10 2,000 03-29-95 2,700 02-95 Sale 100,000 .85 85,000 03-10-952w 03-29-95 ==========================================START OF PAGE 9====== Total value late reported transactions: $ 849,316 * = Price per share rounded off ** = Lateness calculated through October 18, 1996 ==========================================START OF PAGE 10====== Jerry Silva Schedule 13D and Amendments Communications & Entertainment Corporation (formerly Double Helix Films, Inc.) January 2, 1990 through October 18, 1996 Date Date Event Due/ Apprx. of No. of Triggering Date Yrs/Mos/ Trans. Type Shares Amendment Rec'd Wks.Late 12-22-89 13D 836,684 01-02-90 T 01-02-90 06-21-90 13D Amendment Change in 06-21-90* 1m Ownership 07-20-90 09-06-90 13D Amendment Change in 09-06-90 T Ownership 09-12-90 12-19-90 13D Amendment Change in 12-19-90 5y10m Ownership Not rec'd 03-13-91 13D Amendment Change in 03-13-91 5y7m Ownership Not rec'd 05-22-91 13D Amendment Change in 05-22-91 5y4m3w Ownership Not rec'd 10-17-91 13D Amendment Change in 10-17-91 5y Ownership Not rec'd 08-07-92 13D Amendment Change in 08-07-92 4y2m1w Ownership Not rec'd 08-20-93 13D Amendment Change in 08-20-93 3y2m Ownership Not rec'd 02-01-95 13D Amendment Change in 02-01-95 1y8m2w Ownership Not rec'd * = For the purpose of this table, the due date for amendments reflects the date the obligation to file the amendment arose. ** = Lateness calculated through October 18, 1996. ==========================================START OF PAGE 11====== IV. FINDINGS Based on the above, the Commission finds that Silva violated Sections 13(d) and 16(a) of the Exchange Act, Rules 13d-1, 13d-2, 16a-2, 16a-3 and former Rule 16a-1 promulgated thereunder. V. OFFER OF SETTLEMENT Silva has submitted an Offer of Settlement in this proceeding which the Commission has determined to accept. Silva, in his Offer, consents to this Order making findings, as set forth above, and ordering him to cease and desist from committing or causing any violation of, and committing or causing any future violation of, Sections Section 13(d) and 16(a) of the Exchange Act and Rules 13d-1, 13d-2, 16a-2 and 16a-3 promulgated thereunder. VI. ORDER Accordingly, IT IS HEREBY ORDERED, pursuant to Section 21C of the Exchange Act, that Silva cease and desist from committing or causing any violation of, and committing or causing any future violation of, Sections 13(d) and 16(a) of the Exchange Act and Rules 13d-1, 13d-2, 16a-2 and 16a-3 promulgated thereunder. By the Commission. Jonathan G. Katz Secretary