<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 1996
REGISTRATION NO. 333-5723
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------
AMENDMENT
NO. 3
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------
CD-MAX, INC.
(Name of Small Business Issuer in its Charter)
Delaware 8980 87-0378128
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of Incorporation or Classification Code Identification Number)
organization) Number)
11480 Sunset Hills Road, Suite 110
Reston, Virginia 22090
(703) 471-5755
(Address and telephone numberof principal executive offices)
------
Philip J. Gross
CD-MAX, Inc.
11480 Sunset Hills Road, Suite 110
Reston, Virginia 22090
(703) 471-5755
(Name, address and telephone number of agent for service)
------
Copies to:
David M. Lewis, Esq. Rubi Finkelstein, Esq.
Lewis, Goldberg & Ball Orrick, Herrington & Sutcliffe
A Professional Corporation 666 Fifth Avenue
Suite 360, 1320 Old Chain Bridge Road New York, NY 10103-0001
McLean, VA 22101-3930 Telephone: (212) 506-5000
Telephone: (703) 506-0550 Telecopy: (212) 506-5151
Telecopy: (703) 506-6829
------
Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of this registration statement.
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, check the following box: [X]
------
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, as amended, or until this
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said section 8(a), may determine.
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<PAGE>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------
<TABLE>
<CAPTION>
==========================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount Being Offering Price Aggregate Offering Amount of
Securities to be Registered Registered Per Unit(1) Price(1) Registration Fee
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Units (each Unit consisting of
two shares of Common Stock
("Common Stock"), $.01 par
value, and one Redeemable
Warrant ("Redeemable
Warrant")(2): ................ 1,322,500 $6.125 $8,100,313 $2,793.20
- ----------------------------------------------------------------------------------------------------------
Common Stock included in Units: 2,645,000 $ 0.00 $0.00 $ 0.00
- ----------------------------------------------------------------------------------------------------------
Redeemable Warrants included in
Units (3): ................... 1,322,500 $ 0.00 $0.00 $ 0.00
- ----------------------------------------------------------------------------------------------------------
Common Stock underlying the
Redeemable Warrants included
in Units (3): ................. 1,322,500 $4.59(4) $6,070,275 $2,093.19
- ----------------------------------------------------------------------------------------------------------
Underwriter's Warrants to
purchase Units (5)(6): ....... 115,000 $.0001 $11.50 (7)
- ----------------------------------------------------------------------------------------------------------
Units issuable upon exercise of
Underwriter's Warrants (each
Unit consisting of two shares
of Common Stock and one
Redeemable Warrant) (8): ..... 115,000 $10.11 $1,162,650 $ 401.35
- ----------------------------------------------------------------------------------------------------------
Common Stock included in Units
issuable upon exercise of
Underwriter's Warrants: ...... 230,000 $ 0.00 $0.00 $ 0.00
- ----------------------------------------------------------------------------------------------------------
Redeemable Warrants included in
Units issuable upon exercise
of Underwriter's Warrants: ... 115,000 $ 0.00 $0.00 $ 0.00
- ----------------------------------------------------------------------------------------------------------
Common Stock Underlying
Redeemable Warrants included
in Units issuable upon
exercise of Underwriter's
Warrants: .................... 115,000 $ 4.59 $527,850 $ 182.01
- ----------------------------------------------------------------------------------------------------------
Redeemable Warrants (9): ...... 1,070,000 $ 0.25 $267,500 $ 92.24
- ----------------------------------------------------------------------------------------------------------
Common Stock underlying
Redeemable Warrants (10): .... 1,070,000 $ 4.59 $4,911,300 $1,693.54
- ----------------------------------------------------------------------------------------------------------
Common Stock (11): ............ 60,615 $3.00(12) $181,845 $ 62.70
Total Registration Fee ..................................................................... $7,318.21
==========================================================================================================
</TABLE>
(footnotes on following page)
<PAGE>
(footnotes to Calculation of Registration Fee table)
(1) Estimated solely for purposes of calculating the registration fee.
(2) Includes 172,500 Units, which the Underwriter has the option to purchase
to cover over-allotments, if any.
(3) Pursuant to Rule 416, there also are being registered such additional
securities as may be required for issuance pursuant to the anti-
dilution provisions of the Redeemable Warrants.
(4) The price per share of Common Stock issuable upon exercise of the
Redeemable Warrants is based on 75% of the offering price per Unit.
(5) To be issued to the Underwriter at Closing.
(6) Pursuant to Rule 416, there also are being registered such additional
securities as may be required for issuance pursuant to the anti-
dilution provisions of the Underwriter's Warrants.
(7) No registration fee required pursuant to Rule 457(g).
(8) Pursuant to Rule 416, there are also being registered such additional
securities as may be required for issuance pursuant to the anti-
dilution provisions of the Redeemable Warrants underlying the
Underwriter's Warrants.
(9) These Redeemable Warrants are to be issued to the holders of the
warrants issued in certain of the Company's recently completed bridge
financings and certain other prior financings in exchange for such
warrants.
(10) Pursuant to Rule 416, there also are being registered such additional
securities as may be required for issuance pursuant to the anti-
dilution provisions of the Redeemable Warrants.
(11) Represents shares held by certain selling shareholders whose shares are
not included as part of the Units.
(12) Estimated solely for the purpose of calculating the registration fee
based upon the closing bid price of the Common Stock on the NASD OTC
Electronic Bulletin Board on July 31, 1996.
<PAGE>
On December 15, 1995, the Company issued a total of 80,825 shares of
Common Stock and 80,825 common stock purchase warrants to Steven P.
Schnipper, Suan Investments and Stourbridge Investments, Ltd., in return for
their guarantee to provide interim financing of up to $300,000 to the
Company. The stock and warrant issuance was the result of negotiations
between the Company and the investors and represents the repricing of the
investors' earlier equity investments in the Company. These transactions were
exempt from registration as a private transactions pursuant to Section 4(2)
of the Act.
In February, March and April 1996, Steven P. Schnipper, Suan Investments
and Stourbridge Investments, Ltd. advanced an aggregate of $300,000 to the
Company. The initial $100,000 was advanced pursuant to a promissory note that
was repaid from the net proceeds of a subsequent financing, as described
below. The Company issued an aggregate of $180,000 principal amount of
promissory notes, and 170,000 Common Stock purchase warrants. These
transactions were exempt from registration as a private transactions pursuant
to Section 4(2) of the Act.
On May 16, 1996, the Company consummated a $1,000,000 bridge financing,
pursuant to which it issued an aggregate of (i) $900,000 principal amount of
promissory notes which bear interest at the rate of 10% per annum and are due
and payable upon the earlier of (a) the consummation of a public financing of
the Company through the sale of equity securities from which the Company
receives gross proceeds of at least $3,000,000 or (b) May 16, 1997, and (ii)
600,000 warrants with an aggregate purchase price of $100,000, each warrant
entitling the holder to purchase one share of Common Stock at an initial
exercise price of $3.37 (subject to adjustment upon the occurrence of certain
events) during the three-year period commencing May 16, 1997. This financing
was placed for the Company by Joseph Stevens & Company, LP with accredited
investors. These transactions were exempt from registration as a private
transactions pursuant to Section 4(2) of the Act, and pursuant to Regulation
D promulgated thereunder.
ITEM 27. EXHIBITS
Copies of the following documents are included as exhibits to this
Registration Statement, pursuant to item 601 of Regulation S-K.
<TABLE>
<CAPTION>
SEC Title of
Reference No. Exhibit No. Document
--------------- ------------- ---------
<S> <C> <C>
(1) 1 Underwriting Agreement
(3)(i) 3.1 Articles of Incorporation
(3)(ii) 3.2 By-Laws
(4) 4.1 Form of Common Stock Certificate
(4) 4.2 Form of Redeemable Warrant**
(4) 4.3 Form of Warrant Agreement
(4) 4.4 Form of Underwriter's Warrant Agreement
(5) 5.1 Opinion of Lewis, Goldberg & Ball, A Professional Corporation****
(10)(i) 10.1 Amended Master License Agreement between John D. Wiedemer and CD-MAX, Inc.
(10)(i) 10.2 Employment Agreement by and between CD-MAX, Inc. and John David Wiedemer and Amendment
One thereto.
(10)(i) 10.3 Employment Agreement by and between CD-MAX, Inc. and Robert A. Wiedemer and Amendment
One thereto.
(10)(i) 10.4 Employment Agreement by and between CD-MAX, Inc. and Philip J. Gross and Amendment
One thereto.
(10)(i) 10.5 Employment Agreement by and between CD-MAX, Inc. and David B. Boelio and Amendment
One thereto.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SEC Title of
Reference No. Exhibit No. Document
--------------- ------------- --------
<S> <C> <C>
(10)(i) 10.6 Letter from CD-MAX, Inc. to Dataware Technologies, Inc. dated September 6, 1995
(10)(i) 10.7 CD-MAX Data Security, Usage Billing and Information Management Services Agreement
with Mitchell International, Inc. ** ***
(10)(i) 10.8 CD-MAX Data Security, Usage Billing and Information Management Services Agreement
with Disclosure Incorporated ** ***
(10)(i) 10.9 Folio Corporation Reciprocal Nondisclosure Agreement
(10)(i) 10.10 E-Data Systems Limited License Agreement
(10)(ii) 10.11 Incentive Stock Option Plan
(10)(ii) 10.12 Board of Director Resolution and Agreement with Officers re Management Warrants
(10)(i) 10.13 Form of Financial Advisory and Consulting Agreement
10.14 Information Management Services Agreement with CIVS ** ***
10.15 IHS/CD-MAX Agreement*
(23) 23.1 Consent of Ernst & Young LLP.**
(23) 23.2 Consent of Lewis, Goldberg & Ball, A Professional Corporation (included in Exhibit
5.1)
(23) 23.3 Consent of Quarles & Brady **
(24) 24.1 Power of Attorney
(27) 27.1 Financial Data Schedule
</TABLE>
- ------
*Indicates that exhibit was filed with Amendment No. 1.
**Indicates that exhibit was filed with Amendment No. 2.
***Indicates that confidential treatment has been requested with respect to
this exhibit.
****Indicates that exhibit was filed with Amendment No. 3.
ITEM 28. UNDERTAKINGS
POST-EFFECTIVE AMENDMENTS. [REGULATION S-B, ITEM 512(A)]
The undersigned Registrant will:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information in the
registration statement; and, notwithstanding the forgoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) of if, in the aggregate, the changes in the volume
and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) Include any additional or changed material information on the
plan of distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial
bona fide offering.
II-4
<PAGE>
SIGNATURE PAGE
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing Form SB-2 and authorized this Amendment
No. 3 to this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the County of Fairfax, State of
Virginia, on August 12, 1996.
CD-MAX, Inc.
By:/s/ Robert A. Wiedemer
--------------------------------
Robert A. Wiedemer, President
and Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933, Amendment
No. 3 to this registration statement has been signed by the following persons
in the capacities and on the dates stated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert A. Wiedemer President, Chief Executive Officer, Chairman August 12, 1996
- ------------------------------ of Board of Directors
Robert A. Wiedemer
/s/ Philip J. Gross Secretary, Treasurer, Vice-President-Chief August 12, 1996
- ------------------------------ Financial Officer (principal financial officer,
Philip J. Gross principal accounting officer)
John David Wiedemer* Senior Vice President-Operations, Director August 12, 1996
- ------------------------------
John David Wiedemer
David B. Boelio* Senior Vice President-Marketing and Sales August 12, 1996
- ------------------------------
David B. Boelio
Steven P. Schnipper* Director August 12, 1996
- ------------------------------
Steven P. Schnipper
Weldon P. Rackley* Director August 12, 1996
- ------------------------------
Weldon P. Rackley
*By:/s/ Robert A. Wiedemer
--------------------------
Robert A. Wiedemer
Attorney-in-fact
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEC Title of
Reference No. Exhibit No. Document
<S> <C> <C>
(1) 1 Underwriting Agreement
(3)(i) 2.1 Articles of Incorporation
(3)(ii) 2.2 By-Laws
(4) 4.1 Form of Common Stock Certificate
(4) 4.2 Form of Redeemable Warrant**
(4) 4.3 Form of Warrant Agreement
(4) 4.4 Form of Underwriter's Warrant Agreement
(5) 5.1 Opinion of Lewis, Goldberg & Ball, A Professional Corporation****
(10)(i) 10.1 Amended Master License Agreement between John D. Wiedemer and CD-MAX, Inc.
(10)(i) 10.2 Employment Agreement by and between CD-MAX, Inc. and John David Wiedemer and Amendment
One thereto.
(10)(i) 10.3 Employment Agreement by and between CD-MAX, Inc. and Robert A. Wiedemer and Amendment
One thereto.
(10)(i) 10.4 Employment Agreement by and between CD-MAX, Inc. and Philip J. Gross and Amendment
One thereto.
(10)(i) 10.5 Employment Agreement by and between CD-MAX, Inc. and David B. Boelio and Amendment
One thereto.
(10)(i) 10.6 Letter from CD-MAX, Inc. to Dataware Technologies, Inc. dated September 6, 1995
(10)(i) 10.7 CD-MAX Data Security, Usage Billing and Information Management Services Agreement
with Mitchell International, Inc. ** ***
(10)(i) 10.8 CD-MAX Data Security, Usage Billing and Information Management Services Agreement
with Disclosure Incorporated ** ***
(10)(i) 10.9 Folio Corporation Reciprocal Nondisclosure Agreement
(10)(i) 10.10 E-Data Systems Limited License Agreement
(10)(ii) 10.11 Incentive Stock Option Plan
(10)(ii) 10.12 Board of Director Resolution and Agreement with Officers re Management Warrants
(10)(i) 10.13 Form of Financial Advisory and Consulting Agreement
10.14 Information Management Services Agreement with CIVS ** ***
10.15 IHS/CD-MAX Agreement*
(23) 23.1 Consent of Ernst & Young LLP.**
(23) 23.2 Consent of Lewis, Goldberg & Ball, A Professional Corporation (included in Exhibit
5.1)
(23) 23.3 Consent of Quarles & Brady **
(24) 24.1 Power of Attorney
(27) 27.1 Financial Data Schedule
</TABLE>
- ------
*Indicates that exhibit was filed with Amendment No. 1.
**Indicates that exhibit was filed with Amendment No. 2.
***Indicates that confidential treatment has been requested with respect to
this exhibit.
****Indicates that exhibit was filed with Amendment No. 3.
<PAGE>
EXHIBIT 5.1
LEWIS, GOLDBERG & BALL LETTERHEAD
August 13, 1996
CD-MAX, Inc.
11480 Sunset Hills Road
Suite 110
Reston, VA 20190-5208
RE: Offer and Sale of 1,150,000 Units, Each Consisting of Two
Shares Common Stock, Par Value $.01 per Share and One Redeemable
Warrant, 1,070,000 Redeemable Warrants, and 60,615 Shares of
Common Stock, Pursuant to a Form SB-2 Registration Statement
(No. 333-5723)
Gentlemen:
We have acted as counsel to CD-MAX, Inc. (the "Company") in connection
with the registration of certain securities of the Company on Form SB-2 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), and in connection with the conduct of corporate proceedings relating
thereto. The Registration Statement will effect the registration of (i)
1,500,000 Units, each unit consisting of two shares of Common Stock, par value
$.01 per share ("Common Stock") and one Redeemable Warrant and (ii) an aggregate
of 1,070,000 Redeemable Warrants and 60,615 shares of Common Stock (collectively
the "Selling Securityholder Securities").
As such counsel, we have examined the corporate records of the Company,
including its Certificate of Incorporation, its By-Laws, stock records, and
Minutes of Meetings of its Board of Directors and Stockholders. In addition, we
have examined the Registration Statement and the prospectus which constitutes
Part I of the Registration Statement (the "Prospectus"), the underwriting
agreement between the Company and Joseph Stevens & Company L.P. the form of
which has been filed as Exhibit 1.1 to the Registration Statement (the
"Underwriting Agreement"), and such other documents as we have deemed necessary
as a basis for the opinions herein expressed.
In our examination of the documents described in the preceding
paragraph, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to the
corresponding originals of all documents submitted to us as copies, and the
authenticity of the originals of such copies.
<PAGE>
CD-MAX, Inc.
August 13, 1996
Page 2
Our opinion herein is also qualified to the extent that the validity or
enforceability of any of the agreements or other documents or obligations
referred to herein, or any rights granted pursuant to such agreements, documents
or obligations, may be subject to, and affected by, applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally. Further, we express no opinion as to the
availability of equitable enforcement upon breach of any such agreements,
documents or obligations.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with an authorized and issued capital stock as set forth
in the Prospectus.
(2) When (a) the Registration Statement, as amended, shall have been
ordered effective by the U.S. Securities and Exchange Commission in
accordance with the Act, and (b) the Units shall have been sold and
certificates evidencing the Units shall have been duly executed and
issued as provided in the Registration Statement and the
Underwriting Agreement, then the units thus sold by the Company and
the Common Stock and Warrants included therein will have been duly
and validly authorized and issued, fully paid and nonassessable as
stated in the Prospectus, and will conform to the description
thereof contained in the Prospectus.
(3) When (a) the Registration Statement, as amended, shall have been
ordered effective by the U.S. Securities and Exchange Commission in
accordance with the Act, and (b) the Selling Securityholder
Securities shall have been sold and certificates evidencing the
Selling Securityholder Securities shall have been duly executed and
issued as provided in the Registration Statement, then the Selling
Securityholder Securities thus sold by the Selling Securityholders
will have been duly and validly authorized and issued, fully paid
and nonassessable as stated in the Prospectus, and will conform to
the description thereof contained in the Prospectus.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, as amended, and to the reference to this firm under the
heading "Legal Matters" in the Prospectus.
Sincerely,
LEWIS, GOLDBERG & BALL
A Professional Corporation
/s/ David M. Lewis
---------------------------------
David M. Lewis
DML/kad