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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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
DVD EXPRESS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 95-4603442
(State of Incorporation or Organization) (IRS Employer
Identification No.)
7083 HOLLYWOOD BOULEVARD, LOS ANGELES, CALIFORNIA 90028
(Address of Principal Executive Offices) (ZIP Code)
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. [ ]
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. [_X_]
SECURITIES ACT REGISTRATION STATEMENT FILE NUMBER TO WHICH THIS
FORM RELATES: 333-76121 .
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(if applicable)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
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Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Common Stock, par value $.0001 per share Nasdaq National Market
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
For a description of the Common Stock being registered, reference is
made to the section entitled "Description of Capital Stock" included in the
Prospectus (the "Prospectus") contained in the Registrant's Registration
Statement on Form S-1, File No. 333-76121, filed with the Securities and
Exchange Commission on April 12, 1999, as amended (the "Registration
Statement"). A copy of pages 50 and 51 of the Prospectus are attached as
Exhibit 3 to this filing pursuant to Rule 12b-23 under the Securities
Exchange Act of 1934, as amended.
ITEM 2.EXHIBITS.
The following exhibits are filed as a part of this Registration Statement
1. Certificate of Incorporation of the Registrant. (Incorporated by
reference to Exhibit 3.3 to the Registration Statement).
2. By-Laws of the Registrant (Incorporated by reference to Exhibit 3.4
to the Registration Statement).
3. Pages 50 and 51 of the Prospectus.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
DVD EXPRESS, INC.
Dated: June 15, 1999 /s/ Michael J. Dubelko
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Michael J. Dubelko
Chairman, Chief Executive Officer and
President
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Exhibit 3
DESCRIPTION OF CAPITAL STOCK
We are authorized to issue 50,000,000 shares of common stock, par value
$.0001 per share, and 10,000,000 shares of preferred stock, par value $.0001 per
share. As of the date of this prospectus, there were 17,706,427 shares of common
stock outstanding and there were 24 holders of record of the common stock. There
are 2,571,427 shares of preferred stock outstanding, all of which will convert
to common stock on the closing date of this offering. The following statements
are brief summaries of our capital stock.
COMMON STOCK
The holders of common stock are entitled to one vote for each share held of
record on all matters on which the holders of common stock are entitled to vote.
The holders of common stock are entitled to receive dividends in proportion to
their ownership when, as and if declared by our Board of Directors out of
legally available funds. In the event of our liquidation, dissolution or winding
up, the holders of common stock are entitled, subject to the rights of holders
of Preferred Stock issued by us, if any, to share proportionally in all assets
remaining available for distribution to them after payment of liabilities and
after provision is made for each class of stock, if any, having preference over
the common stock.
The holders of common stock have no preemptive or conversion rights, and
they are not subject to further calls or assessments by us. There are no
redemption or sinking fund provisions applicable to our common stock. The
outstanding shares of common stock are, and the common stock issuable in this
offering will be, when issued, fully paid and nonassessable.
PREFERRED STOCK
Our Board of Directors has the authority to issue the authorized and
unissued preferred stock in one or more series with such designations, rights
and preferences as it may determine from time to time. Accordingly, our Board of
Directors is empowered, without stockholder approval, to issue preferred stock
with dividend, liquidation, conversion, voting or other rights superior to, or
which otherwise adversely affect, the voting power or other rights of the
holders of our common stock. In the event of issuance, our preferred stock could
be utilized as a way of discouraging, delaying or preventing an acquisition or
change in our control. After this offering, we will not have any shares of
preferred stock outstanding, and we do not presently intend to issue any shares
of preferred stock, although we may do so.
OPTIONS
As of the date of this prospectus, our Board of Directors has granted, under
our stock incentive plan, options covering an aggregate of 1,124,250 shares of
common stock to our directors, officers and employees, with a weighted average
exercise price of $4.38 per share. These options typically vest over a
three-year period.
In addition, on June 1, 1997, our Board of Directors granted stock options
to purchase up to 300,000 shares of common stock at $.0667 per share to Joan
Abend. These options vest over a four-year period.
WARRANTS
On August 1, 1998, we granted a warrant to America Online, Inc., which was
subsequently amended, to purchase up to 1,384,006 shares of common stock at an
exercise price $5.60 per share. The America Online warrant is fully vested,
non-forfeitable and expires on August 1, 2008. The America Online warrant does
not have any voting rights, dividend rights or preferences before it is
exercised for shares of common stock.
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REGISTRATION RIGHTS
After this offering, Michael J. Dubelko, Geocapital V, L.P., Geocapital IV,
L.P. and Broadview Partners Group will be entitled to registration rights with
respect to their shares. These holders can require us to register all or part of
their shares at any time following 180 days after this offering. In addition,
these holders may also require us to include their shares in future registration
statements that we file and may require us to register their shares on Form S-3.
Upon registration, the registered shares are freely tradable in the public
market without restriction.
Also, America Online is entitled to registration rights with respect to the
shares of common stock that can be purchased upon exercise of its warrant. This
holder can similarly require us to register all or part of its shares at any
time following 180 days after this offering. In addition, this holder may also
require us to include its shares in future registration statements we file and
may require us to register its shares on Form S-3. Upon registration, the
registered shares are freely tradable in the public market without restriction.
ANTI-TAKEOVER EFFECTS
Delaware law and our Certificate of Incorporation and Bylaws could make our
acquisition and the removal of our incumbent officers and directors by means of
a tender offer, a proxy contest or otherwise more difficult. These provisions,
summarized below, are expected to discourage coercive takeover practices and
inadequate takeover bids and to encourage persons seeking to acquire control of
DVD EXPRESS to negotiate first with our management. We believe that the benefits
of increased protection of our potential ability to negotiate with the proponent
of an unfriendly or unsolicited proposal to acquire or restructure us outweigh
the disadvantages of discouraging these proposals because negotiation of these
proposals could result in an improvement of their terms.
We are subject to Section 203 of the Delaware General Corporation Law, an
anti-takeover law. In general, Section 203 prohibits a publicly held Delaware
corporation from engaging in an "business combination" with an "interested
stockholder" for a period of three years following the date the person became an
interested stockholder, unless the "business combination" or the transaction in
which the person became an interested stockholder is approved in a prescribed
manner. Generally, a "business combination" includes a merger, asset or stock
sale, or other transaction resulting in a financial benefit to the interested
stockholder. Generally, an "interested stockholder" is a person who, together
with affiliates and associates, owns or owned, within three prior years, 15% or
more of a corporation's voting stock. The existence of this provision would be
expected to have an anti-takeover effect with respect to transactions not
approved in advance by our Board of Directors, including discouraging attempts
that might result in a premium over the market price for the shares of Common
Stock held by stockholders.
Our Certificate of Incorporation and Bylaws, provide for a staggered Board
of Directors, do not provide for cumulative voting in the election of directors,
eliminate the right of stockholders to act by written consent and provides that
special meetings of the stockholders can only be called by our Board of
Directors, Chairman, Chief Executive Officer or President. Also, the
authorization of undesignated preferred stock makes it possible for our Board of
Directors to issue preferred stock with voting of other rights or preferences
that could impede the success of any attempt to change our control. These and
other provisions may have the effect of deterring hostile takeovers or delaying
changes in our control or management.
TRANSFER AGENT
Our transfer agent and registrar for our common stock is U.S. Stock Transfer
Corporation.
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