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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-A/A
AMENDMENT TO FORM 8-A
REGISTRATION STATEMENT
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
POLK AUDIO, INC.
(Exact name of registrant as specified in its charter)
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MARYLAND 52-0954180
(State of incorporation or organization) (I.R.S. employer identification)
5601 METRO DRIVE, BALTIMORE, MARYLAND 21215
(Address of principal executive offices) (zip code)
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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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COMMON STOCK, PAR VALUE $0.01 PER SHARE AMERICAN STOCK EXCHANGE
Securities to be registered pursuant to Section 12(g) of the Act:
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NONE
(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The following paragraphs summarize certain provisions of Maryland
General Corporation Law ("MGCL") and the Charter and By-Laws of the Company.
The summary does not purport to be complete and is subject to and qualified in
its entirety by reference to Maryland law and the Company's Charter and By-Laws
for complete information.
CAPITAL STOCK
The total number of shares of stock of all classes which the Company
has authority to issue is 20,000,000 shares of capital stock with a par value
of $0.01 per share and an aggregate par value of $200,000. All of the shares
are initially classified as "Common Stock." The Board of Directors may classify
and reclassify any unissued shares of capital stock by setting or changing in
any one or more respects the preferences, conversions or other rights, voting
powers, restrictions, limitations as to dividends, qualifications or terms or
conditions of redemption of such shares.
(a) The following is a description of the preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption of the Common Stock of
the Company.
(1) Each share of Common Stock shall have one vote, and,
except as otherwise provided in respect of any class of stock hereafter
classified or reclassified, the exclusive voting power for all purposes shall
be vested in the holders of the Common Stock.
(2) Subject to the provisions of law and any preferences of
any class of stock hereafter classified or reclassified, dividends may be paid
with respect to the Common Stock of the Company at such time and in such
amounts as the Board of Directors may deem advisable.
(3) In the event of any liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary, the holders of the Common
Stock shall be entitled, after payment or provision for payment of the debts
and other liabilities of the Company and the amount to which the holders of any
class of stock hereafter classified or reclassified having a preference on
distributions in the liquidation, dissolution or winding up of the Company
shall be entitled, together with the holders of any other class of stock
hereafter classified or reclassified not having a preference on distributions
in the liquidation, dissolution or winding up of the Company, to share ratably
in the remaining net assets of the Company.
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(b) Subject to the foregoing, the power of the Board of Directors to
classify and reclassify any of the shares of capital stock shall include,
without limitation, subject to the provisions of the charter, authority to
classify or reclassify any unissued shares of such stock into a class or
classes of preferred stock, preference stock, special stock or other stock and
to divide and classify shares of any class into one or more series of such
class, by determining, fixing, or altering one or more of the following:
(1) The distinctive designation of such class or series and
the number of shares to constitute such class or series; provided that, unless
otherwise prohibited by the terms of such or any other class or series, the
number of shares of any class or series may be decreased by the Board of
Directors in connection with any classification or reclassification of unissued
shares and the number of shares of such class or series may be increased by the
Board of Directors in connection with any such classification or
reclassification, and any shares of any class or series which have been
redeemed, purchased, otherwise acquired or converted into shares of Common
Stock or any other class or series shall become part of the authorized capital
stock and be subject to classification and reclassification as provided in this
Section.
(2) Whether or not and, if so, the rates, amounts and times
at which, and the conditions under which, dividends shall be payable on shares
of such class or series, whether any such dividends shall rank senior or junior
to or on a parity with the dividends payable on any other class or series of
stock, and the status of any such dividends as cumulative, cumulative to a
limited extent or non-cumulative and as participating or non-participating.
(3) Whether or not shares of such class or series shall have
voting rights, in addition to any voting rights provided by law and, if so, the
terms of such voting rights.
(4) Whether or not shares of such class or series shall have
conversion or exchange privileges and, if so, the terms and conditions thereof,
including provision for adjustment of the conversion or exchange rate in such
events or at such times as the Board of Directors shall determine.
(5) Whether or not shares of such class or series shall be
subject to redemption and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be redeemable and
the amount per share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates; and whether or not
there shall be any sinking fund or purchase account in respect thereof, and if
so, the terms thereof.
(6) The rights of the holders of shares of such class or
series upon the liquidation, dissolution or winding up of the affairs of, or
upon any distribution of the assets of, the Company, which rights may vary
depending upon whether such liquidation, dissolution or winding up is voluntary
or involuntary and, if voluntary, may vary at
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different dates, and whether such rights shall rank senior or junior to or on a
parity with such rights of any other class or series of stock.
(7) Whether or not there shall be any limitations applicable,
while shares of such class or series are outstanding, upon the payment of
dividends or making of distributions on, or the acquisition of, or the use of
moneys for purchase or redemption of, any stock of the Company, or upon any
other action of the Company, including action under this Section, and, if so,
the terms and conditions thereof.
(8) Any other preferences, rights, restrictions, including
restrictions on transferability, and qualifications of shares of such class or
series, not inconsistent with law and the charter of the Company.
(c) For the purposes hereof and of any articles supplementary to the
charter providing for the classification or reclassification of any shares of
capital stock or of any other charter document of the Company, any class or
series of stock of the Company shall be deemed to rank:
(1) prior to another class or series either as to dividends
or upon liquidation, if the holders of such class or series shall be entitled
to the receipt of dividends or of amounts distributable on liquidation,
dissolution or winding up, as the case may be, in preference or priority to
holders of such other class or series;
(2) on a parity with another class or series either as to
dividends or upon liquidation, whether or not the dividend rates, dividend
payment dates or redemption or liquidation price per share thereof be different
from those of such others, if the holders of such class or series of stock
shall be entitled to receipt of dividends or amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in proportion to
their respective dividend rates or redemption or liquidation prices, without
preference or priority over the holders of such other class or series; and
(3) junior to another class or series either as to dividends
or upon liquidation, if the rights of the holders or such class or series shall
be subject or subordinate to the rights of the holders of such other class or
series in respect of the receipt of dividends or the amounts distributable upon
liquidation, dissolution or winding up, as the case may be.
BOARD OF DIRECTORS
The Company's Charter provides that the number of directors of the
Company shall be 4 and thereafter may be increased or decreased pursuant to the
By-Laws of the Company, but shall never be less than the minimum number
permitted by the MGCL. In the event of vacancy in the Board of Directors,
whether by reason of a Director's death, resignation, disqualification or
removal, or by any other reason or cause, the directors
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remaining in office, by affirmative vote of the majority thereof, may elect the
person to fill such vacancy and to hold office until the next annual meeting of
the stockholders and thereafter until his successor shall be duly elected and
qualified by the stockholders.
REMOVAL OF DIRECTORS
Any Director may be removed from office, with or without cause, by the
affirmative vote of the holders of a majority of the votes entitled to be cast
on the matter.
LIMITED LIABILITY AND INDEMNIFICATION OF DIRECTORS AND OFFICERS OF THE COMPANY
As permitted by the MGCL, the Company has Charter provisions stating
that no director or officer of the Company shall be liable to the Company or
its stockholders for money damages, except (1) to the extent that it is proven
that the person actually received an improper benefit or profit in money,
property or services, for the amount of the benefit or profit in money or
property or services actually received, or (2) to the extent that a judgment or
other final adjudication adverse to the person is entered in a proceeding based
on a finding in the proceeding that the person's actions, or failure to act,
was the result of active and deliberate dishonesty and was material to the
cause of action adjudicated in the proceeding. No director or officer shall be
deemed to have received an improper benefit or profit by reason of any payment
or distribution to or in respect of the Common Stock of the Company, if such
payment or distribution applies or is available equally to all outstanding
shares of Common Stock of the Company.
The By-Laws provide that the Company shall indemnify as set forth in the
Charter of the Company and to the full extent permitted by, and in the manner
permissible under, the laws of the State of Maryland, any person who was or is
a party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was a Director, Officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another Company,
partnership, joint venture, trust or other enterprise, or is or was serving at
the request of the Company as a trustee or administrator or in any other
fiduciary capacity under any pension, profit sharing or other deferred
compensation plan, or any employee welfare benefit plan of the Company.
Expenses (including attorneys' fees) incurred in defending a civil or criminal
action, suit or proceeding shall be paid by the Company in advance of the final
disposition thereof on the conditions and to the extent permitted by the laws
of the State of Maryland.
AMENDMENTS TO BY-LAWS
The Board of Directors shall have full power and authority to amend, alter
or repeal the By-Laws or any provision thereof, and may from time to time make
additional
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By-Laws, at any regular or special meeting as part of the general business of
such meeting.
AMENDMENTS TO CHARTER AND OTHER CHARTER PROVISIONS
The Charter of the Company may be amended only by the affirmative vote
of the holders of not less than a majority of all of the votes entitled to be
cast on the matter.
BUSINESS COMBINATIONS
The MGCL prohibits certain "business combinations" (including a
merger, consolidation, share exchange, or, in certain circumstances, an asset
transfer or issuance or reclassification of equity securities) between a
Maryland Company and an "Interested Stockholder." Interested Stockholders are
all persons (a) who beneficially own 10% or more of the voting power of the
Company's shares or (b) an affiliate or associate of the Company who, at any
time within the two-year period prior to the date in question, was an
Interested Stockholder or an affiliate or an associate thereof. Such business
combinations are prohibited for five years after the most recent date on which
the Interested Stockholder became an Interested Stockholder. Thereafter, any
such business combination must be recommended by the board of directors of such
Company and approved by the affirmative vote of at least (a) 80% of the votes
entitled to be cast by all holders of voting shares of the Company, and (b) 66
2/3% of the votes entitled to be cast by all holders of voting shares of the
Company other than voting shares held by the Interested Stockholder or an
affiliate or associate of the Interested Stockholder, with whom the business
combination is to be effected, unless, among other things, the Company's
stockholders receive a minimum price (as defined in the MGCL) for their shares
and the consideration is received in cash or in the same form as previously
paid by the Interested Stockholder for its shares. These provisions of
Maryland law do not apply, however, to business combinations that are approved
or exempted by the Board of Directors of the Company prior to the time that the
Interested Stockholder becomes an Interested Stockholder. A Maryland
Corporation may adopt an amendment to its charter electing not to be subject to
the special voting requirements of the foregoing legislation. Any such
amendment would have to be approved by the affirmative vote of at least 80% of
the votes entitled to be cast by all holders of outstanding shares of voting
stock and 66 2/3% of the votes entitled to be cast by holders of outstanding
shares of voting stock who are not Interested Stockholders. The Company has
not adopted such an amendment to its Charter.
CONTROL SHARE ACQUISITIONS
The MGCL provides the "control shares" of a Maryland Corporation
acquired in a "control share acquisition" have no voting rights except to the
extent approved by a vote of two-thirds of the votes entitled to be cast on the
matter, excluding shares of stock owned by the acquiror or by officers or
directors who are employees of the Company.
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Control shares are voting shares of stock which, if aggregated with all other
shares of stock previously acquired by such a person, would entitle the
acquiror to exercise voting power in electing directors within one of the
following ranges of voting power: (a) 20% or more but less than 33 1/3%; (b)
33 1/3% or more but less than a majority; or (c) a majority of all voting
power. Control Shares do not include shares of stock an acquiring person is
entitled to vote as a result of having previously obtained stockholder
approval. A control share acquisition means, subject to certain exceptions,
the acquisition of, ownership of or the power to direct the exercise of voting
power with respect to, control shares.
A person who has made or proposes to make a "control share
acquisition," upon satisfaction of certain conditions (including an undertaking
to pay expenses), may compel the board of directors to call a special meeting
of stockholders to be held within 50 days of demand therefore to consider the
voting rights of the shares. If no request for a meeting is made, the Company
may itself present the question at any stockholders' meeting.
If voting rights are not approved at the meeting or if the acquiring
person does not deliver an acquiring person statement as permitted by the
statute, then, subject to certain conditions and limitations, the Company may
redeem any or all of the control shares (except those for which voting rights
have previously been approved) for fair value determined, without regard to
voting rights, as of the date of the last control share acquisition or of any
meeting of stockholders at which the voting rights of such shares are
considered and not approved. If voting rights for "control shares" are
approved at a stockholders' meeting and the acquiror becomes entitled to vote a
majority of the shares entitled to vote, all other stockholders may exercise
appraisal rights. The fair value of the stock as determined for purposes of
such appraisal rights may not be less than the highest price per share paid in
the control share acquisition, and certain limitations and restrictions
otherwise applicable to the exercise of dissenters' rights do not apply in the
context of a "control share acquisition".
The control share acquisition statute does not apply to stock acquired
in a merger, consolidation or stock exchange if the Company is a party to the
transaction, or to acquisitions previously approved or exempted by a provision
in the charter or By-Laws of the Company. There are no such provisions in the
Charter or By-Laws of the Company.
ANTI-TAKEOVER EFFECT
The statutory, regulatory, Charter and By-Law provisions mentioned
above, may make it more difficult and time consuming to change majority control
of the Board of Directors of the Company and thus reduce the vulnerability of
the Company to an unsolicited proposal for the takeover of the Company. In
some circumstances, certain stockholders may consider these provisions to have
disadvantageous effects. Takeover offers are frequently made at prices above
the market price of the target company's stock.
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In addition, acquisitions of stock by persons attempting to acquire control
through market purchases may cause the market price of the target company's
stock to reach levels that are higher than would otherwise be the case. The
Company's Charter and By-Law provisions, as well as the statutory and
regulatory provisions mentioned above, may discourage any such acquisitions,
even though such acquisitions might be beneficial to the Company or its
stockholders. Accordingly, stockholders could be deprived of the opportunity
to sell their stock at prices in excess of current market prices which often
prevail as the result of such occurrences.
ITEM 2. EXHIBITS.
Polk Audio, Inc.'s securities are to be registered on an exchange
which no other securities of Polk Audio, Inc. are registered, consequently, no
exhibits need be filed with, or incorporated by reference in, this registration
statement filed with the Securities and Exchange Commission.
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.
POLK AUDIO, INC.
Date: May 28, 1996 By: /s/ Gary B. Davis
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Gary B. Davis, Treasurer and
Chief Financial Officer
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