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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Medium4.com, Inc.
(formerly known as foreignTV.com, Inc.)
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(Exact name of registrant as specified in its Charter)
Delaware 13-4037641
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
120 Fifth Avenue, Seventh Floor, New York, New 10011
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(Address of principal executive offices)
If this Form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective
pursuant to General Instruction A.(c), please check the following box. [X]
If this Form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant
to General Instruction A.(d), please check the following box. [_]
Securities Act registration statement file number
to which this form relates:
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<TABLE>
<CAPTION>
Title of Each Class Name of Each Exchange on
to be so Registered Which Each Class is to be Registered
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<S> <C>
Common Stock, par value $0.01 The American Stock Exchange
Redeemable Common Stock Purchase Warrants The American Stock Exchange
</TABLE>
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
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(Title of class)
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Item 1. Description of Registrant's Securities to be Registered.
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The Registrant has registered shares of its Common Stock, par value $0.01
per share, and Common Stock Purchase Warrants, pursuant to a registration
statement on Form S-1 (File No. 333-71733) (the "Registration Statement"). The
Registration Statement was declared effective by the Securities and Exchange
Commission on April 13, 1999. Reference is made to the sections entitled
"Summary--The Offering" and "Description of Capital Stock" in the prospectus
forming a part of the Registration Statement, which was filed pursuant to Rule
424 of the Securities Act of 1933, as amended, on April 19, 1999 (the
"Prospectus"). Such sections in the Prospectus are hereby deemed to be
incorporated by reference into this registration statement in accordance with
the Instruction to Item 1 of this Form.
Item 2. Exhibits.
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3.1 Amended and Restated Certificate of Incorporation of the Registrant.
3.2 Amendment, filed December 28, 1999, to the Amended and Restated
Certificate of Incorporation of the Registrant.
3.3 Bylaws of the Registrant (Incorporated by reference to Exhibit 3.2
to the Registration Statement on Form S-1 (File No. 333-71733) of the
Registrant, as amended).
4.1 Form of certificate evidencing Common Stock (Incorporated by reference
to Exhibit 4.1 to the Registration Statement on Form S-1 (File No.
333-71733) of the Registrant, as amended).
4.2 Form of certificate evidencing Common Stock Purchase Warrants
(Incorporated by reference to Exhibit 4.2 to the Registration
Statement on Form S-1 (File No. 333-71733) of the Registrant, as
amended).
4.3 Form of Warrant Agreement between the Registrant and American Stock
Transfer & Trust Company, as Warrant Agent (Incorporated by reference
to Exhibit 4.5 to the Registration Statement on Form S-1 (File No.
333-31733) of the Registrant, as amended).
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SIGNATURES
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Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
Medium4.com, Inc.
By: /s/ Jonathan Braun
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Name: Jonathan Braun
Title: Chief Executive Officer
Dated: May 5, 2000
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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
foreignTV.com, Inc.
Under Section 245 of the Delaware Corporation
The undersigned, President of foreignTV.com, Inc., a corporation existing
under the laws of the State of Delaware, DOES HEREBY CERTIFY as follows:
FIRST: That the name of the corporation is
foreignTV.com, Inc.
SECOND: That the Certificate of Incorporation of the corporation was filed
with the Secretary of State of Delaware on November 12, 1998.
THIRD: That this Restated Certificate of Incorporation amends the
provisions of the Corporation's Certificate of Incorporation by deletion of
Articles Fourth, Fifth and Sixth, and by insertion of new Articles Fourth and
Fifth thereof and the corresponding renumbering of the said Articles, which was
duly adopted by the Board of Directors of the Corporation, was declared
advisable by Board of Directors and approved by written consents executed by the
holders of a majority of the outstanding stock of the Corporation entitled to
vote thereon in the manner prescribed by Sections 228 and 242 of the Delaware
General Corporation Law. This Restated Certificate of Incorporation was duly
adopted in the manner prescribed by Section 245 of the Delaware General
Corporation Law.
FOURTH: That the text of the Certificate of Incorporation of
foreignTV.com, Inc. is hereby restated to read in full as follows:
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FIRST: The name of this corporation shall be:
foreignTV.com, Inc.
SECOND: Its registered office in the State of Delaware is to be located at
1013 Centre Road, in the City of Wilmington, County of New Castle, DE 19805, and
its registered agent at such address is The Company Corporation.
THIRD: The purpose or purposes of the corporation shall be:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: a. The Corporation shall be authorized to issue the following
shares of stock:
Class of Shares Number of Shares Par Value
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Common Shares 30,000,000 $0.01
Preferred Shares 5,000 $0.01
b. The designation and the powers, preferences and rights,
and the qualifications or restrictions of the Preferred Shares are as
follows:
(1) The Preferred Shares shall be issued from time to time
in one or more series, with such distinctive serial designations as
shall be stated and expressed in the resolution or resolutions
providing for the issue of such Preferred Shares from time to time
adopted by the Board of Directors; and in such resolution or
resolutions providing for the issue of Preferred Shares of each
particular series, the Board of Directors is expressly authorized to
fix the annual rate or rates of dividends for the particular series;
the dividend payment dates for the particular series and the date from
which dividends on all Preferred Shares of such series issued prior to
the record date for the first dividend payment date shall be
cumulative; the redemption price or prices for the particular series;
the voting powers for the particular series; the rights, if any, of
holders of the Prefered Shares of the particular series to convert the
same into shares of any other series or class or other securities of
the Corporation, with any provisions for the subsequent adjustment of
such conversion rights; and to classify or reclassify any unissued
preferred shares by fixing or altering from time to time any of
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Amended and Restated Certificate of Incorporation Page 2
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the foregoing rights, privileges and qualifications.
(2) All the Preferred Shares of any one series shall be
identical with each other in all respects, except that Preferred
Shares of any one series issued at different times may differ as to
the dates from which dividends thereon shall be cumulative; and all
Preferred Shares shall be of equal rank, regardless of series and
shall be identical in all respects except as to the particulars fixed
by the Board of Directors as hereinabove provided or as fixed herein.
c. (1) Subject to the preferential dividend rights
applicable to Preferred Shares, the holders of Common Shares shall be
entitled to receive such dividends as may be declared by the Board of
Directors
(2) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, after
distribution in full of the preferential amounts to be distributed to
the holders of Preferred Shares, the holders of Common Shares shall be
entitled to receive all of the remaining assets of the Corporation
available for distribution to holders of Common Shares, ratably in
proportion to the number of Common Shares held by them.
(3) Except as otherwise required by statute or as otherwise
provided in this Certificate of Incorporation, the holders of Common
Shares shall be entitled to vote on all matters at all meetings of the
stockholders of the Corporation and shall be entitled to one vote for
each Common Share entitled to vote at such meeting, voting together,
as one Class with the holders of Preferred Shares who are entitled to
vote, if any such Preferred Shares are then outstanding and not as a
separate class.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation, and for further
definition, limitation and regulation of the powers of the corporation and of
its directors and stockholders:
A. The number of directors of the Corporation shall be such as from
time to time shall be fixed by, or in the manner provided, in the by-laws of the
Corporation. Election of directors need not be by ballot unless the by-laws so
provide.
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Amended and Restated Certificate of Incorporation Page 3
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b. The Board of Directors shall have power, without the consent,
assent or vote of the stockholders, to do the following:
(1) to make, alter, amend, change, add to, or repeal the by-laws
of the corporation;
(2) to fix and vary the amount to be reserved for any proper
purpose;
(3) to authorize and cause to be executed mortgages and liens and
other security interest upon all or any part of the property of the
corporation;
(4) to determine the use and disposition of any surplus or net
profits; and to fix the times for the declaration and payment of
dividends;
(5) to determine from time to time whether, and to what times and
places and under what conditions the accounts and books of the
corporation (other than the stock ledger) or any of them, shall be
open to the inspection of the stockholders.
c. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
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Amended and Restated Certificate of Incorporation Page 4
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d. The corporation shall, to the full extent permitted by Section
145 of the Delaware General Corporation Law, as amended, from time to time,
indemnify all persons whom it may indemnify pursuant thereto.
e. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve gross and intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director knowingly
derived an improper personal benefit.
f. Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer, of the corporation or is or was
serving at the request of the corporation as a director or officer, of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, or in any other capacity while serving as a director or officer, shall
be indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director or officer, and shall inure to the benefit of his or her heirs,
executors and administrators: provided, however, that, except as provided in
paragraph (e) hereof, the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
board of directors of the corporation. The right to indemnification conferred
in this paragraph shall be a contract right and shall include the right to be
paid by the corporation the expenses incurred in defending any
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Amended and Restated Certificate of Incorporation Page 5
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such proceeding in advance of its final disposition; provided, however, that if
the Delaware General Corporation Law requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this paragraph or otherwise. The
corporation may, by action of its board of directors, provide indemnification to
employees and agents of the corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
g. If a claim under paragraph (f) of this Article Fifth is not paid
in full by the corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim, including reasonable attorneys fees. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the corporation. Neither the failure of the
corporation (including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the corporation
(including its board of directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard or conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
h. The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
Article Fifth shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation, by-law, agreement, vote of stockholders or
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Amended and Restated Certificate of Incorporation Page 6
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disinterested directors or otherwise.
i. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
IN WITNESS WHEREOF, I have signed this certificate this 27th day of
January, 1999.
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Albert T. Primo
President
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Amended and Restated Certificate of Incorporation Page 7
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CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
OF
foreignTV.com, Inc.
Under Section 242 of the Delaware Corporation
The undersigned, Secretary of foreignTV.com, Inc., a corporation existing
under the laws of the State of Delaware, DOES HEREBY CERTIFY as follows:
FIRST: That the name of the corporation is
foreignTV.com, Inc.
SECOND: That the Certificate of Incorporation of the corporation was
filed with the Secretary of State of Delaware on November 12, 1998.
THIRD: The certificate of incorporation of the Corporation is hereby
amended, effective as of January 1, 2000, by striking out Article FIRST thereof
and by substituting in lieu of said Article the following new Article FIRST:
FIRST: The name of this corporation shall be:
Medium4.com, Inc.
FOURTH: The amendment of the certificate of incorporation of the
Corporation herein certified was duly adopted by the Board of Directors of the
Corporation, was declared advisable by Board of Directors and approved by the
vote of a majority of the outstanding stock of the Corporation entitled to vote
thereon in the manner prescribed by Sections 222 and 242 of the Delaware General
Corporation Law, at a special meeting of the stockholders that was duly convened
for such purpose on December 28, 1999.
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Certificate of Amendment of Certificate of Incorporation Page 1
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FIFTH: As permitted by Section 103(d) of the Delaware General
Corporation Law, the amendment effected by this Certificate of Amendment shall
become effective at 12:01 a.m., Eastern Standard Time, on January 1, 2000.
IN WITNESS WHEREOF, I have signed this certificate this 28th day of
December, 1999.
_______________________
Marc D. Leve
Secretary
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Certificate of Amendment of Certificate of Incorporation Page 2
