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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ADVANTAGE MARKETING SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
OKLAHOMA 73-1323256
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
2601 NORTHWEST EXPRESSWAY, SUITE 1210W
OKLAHOMA CITY, OKLAHOMA 73112-7293
(Address of principal executive offices) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Title of each class Name of each exchange on which
to be registered each class is to be registered
Common Stock, $.0001 par value The Boston Stock Exchange, Inc.
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
NONE
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
Advantage Marketing Systems, Inc., an Oklahoma corporation (the "Company"
or "Registrant"), pursuant to its Certificate of Incorporation, as amended, is
authorized to issue up to 500,000,000 shares of capital stock, consisting of
495,000,000 shares of Common Stock, $.0001 par value ("Common Stock"), and
5,000,000 shares of Preferred Stock, $.0001 par value ("Preferred Stock").
The following description of certain matters relating to the Common Stock,
Preferred Stock, 1997-A Warrants and Redeemable Common Stock Purchase Warrants
of Registrant is a summary and is qualified in its entire by the provisions of
the Registrant's Certificate of Incorporation, as amended, Bylaws, as amended,
the Warrant Agreement between Registrant and U.S. Stock Transfer Corp., as
amended and restated, and the Unit and Warrant Agreement between Registrant and
U.S. Stock Transfer Corp., as amended and restated, which are incorporated filed
as an exhibits hereto. See "Item 2. Exhibits."
COMMON STOCK
The holders of outstanding shares of Common Stock are entitled to receive
dividends out of assets legally available at such times and in such amounts as
the Board of Directors may, from time to time, determine, and upon liquidation
and dissolution are entitled to receive all assets available for distribution to
the shareholders, subject to any rights that holders of Preferred Stock may
have. Holders of Common Stock are entitled to one vote per share on matters
voted upon by the shareholders. The Common Stock has no preemptive rights and
no subscription, redemption or conversion privileges. The Common Stock does not
have cumulative voting rights, which means that holders of a majority of shares
voting for the election of directors can elect all members of the Board of
Directors subject to election. In general, a majority vote of shares
represented at a meeting of shareholders at which a quorum is present (generally
the holders of a majority of the shares entitled to vote, in person or by proxy)
is sufficient for all actions that require the vote or concurrence of
shareholders, subject to and possibly in connection with the voting rights of
the holders of Preferred Stock.
DESCRIPTION OF OTHER SECURITIES OF THE COMPANY
PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more series,
and the Board of Directors of the Company, without further approval of its
shareholders, is authorized to fix the relative rights, preferences, privileges
and restrictions applicable to each series of Preferred Stock. Management of
the Company believes that having such a class of Preferred Stock provides the
Company with greater flexibility in financing, acquisitions and other corporate
activities. In the the event of any such issuance of Preferred Stock, the
holders of Common Stock will not have any preemptive or similar rights to
acquire any of such Preferred Stock.
1997-A WARRANTS
The Company has 337,211 authorized and outstanding 1997-A Warrants. Each
1997-A Warrant entitles the holder to purchase one share of Common Stock at any
time after April 16, 1997, and on or before November 6, 2002, for an exercise
price of $3.40. The 1997-A Warrants contain provisions that protect the holder
thereof against dilution by adjustment of the number of shares of Common Stock
or other securities of the Company purchasable upon exercise of the 1997-A
Warrants in certain events, such as stock dividends, stock splits, mergers, sale
of substantially all of the Company's assets, and for other extraordinary
events. At any time, upon 30 days' written notice, the
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Company may redeem in whole and not in part, unexercised 1997-A Warrants for
$.0001 per warrant at any time. If any 1997-A Warrants called for redemption
are not exercised by such time, such 1997-A Warrants will cease to be
exercisable, and the holders thereof will be entitled only to receive the
redemption price. All 1997-A Warrants not exercised or redeemed will expire on
November 6, 2002. Holders of 1997-A Warrants will not, as such, have any of the
rights of shareholders of the Company.
In certain cases, the sale of securities by the Company upon exercise of
1997-A Warrants could violate the securities laws of the United States, certain
states thereof or other jurisdictions. The Company has agreed to use its best
efforts to cause a registration statement with respect to such securities under
the Securities Act of 1933 (the "1933 Act") to continue to be effective during
the term of the 1997-A Warrants and to take such other actions under the laws of
various states as may be required to cause the sale of securities upon exercise
of 1997-A Warrants to be lawful. However, the Company will not be required to
honor the exercise of 1997-A Warrants if, in the opinion of counsel, the sale of
securities upon such exercise would be unlawful. In certain cases, the Company
may, but is not required to, purchase 1997-A Warrants submitted for exercise for
a cash price equal to the difference between the market price of the securities
obtainable upon such exercise and the exercise price of such 1997-A Warrants.
The 1997-A Warrants may be exercised by filling out and signing the
appropriate form on the reverse side of the warrant certificate and mailing or
delivering the warrant certificate to the Warrant Agent in time to reach the
Warrant Agent by the expiration or any redemption date, accompanied by payment
in full of the exercise price for the 1997-A Warrants being exercised in United
States funds (in cash or by check or bank draft payable to the order of the
Company). Common Stock certificates will be issued as soon as practicable after
exercise and payment of the exercise price as described above.
The 1997-A Warrants contain provisions that protect the holder thereof
against dilution by adjustment of the number of shares of Common Stock or other
securities of the Company purchasable upon exercise of the 1997-A Warrants in
certain events, such as stock dividends, stock splits, mergers, sale of
substantially all of the Company's assets, and for other extraordinary events.
REDEEMABLE COMMON STOCK PURCHASE WARRANTS
The Company has 1,625,000 authorized Redeemable Common Stock Purchase
Warrants (the "Warrants") of which 1,495,000 are outstanding and 130,000 have
been reserved for issuance upon exercise of warrants held by Paulson Investment
Company, Inc. and Joseph Charles & Assoc., Inc. Each Warrant entitles the holder
to purchase one share of Common Stock at any time on or before November 6, 2002,
unless previously redeemed, upon payment of the exercise price of $3.40. The
number and kind of securities or other property for which the Warrants are
exercisable are subject to adjustments in certain events, such as mergers,
reorganizations or stock splits, to prevent dilution. Unless previously
redeemed, the Warrants are exercisable on or before 5:00 p.m., New York City
time on November 6, 2002, and then only in the event (i) a current prospectus
under the 1933 Act relating to the shares of Common Stock issuable upon exercise
of the Warrants is then in effect and (ii) such Common Stock is qualified for
sale or exemption from qualification under the applicable securities laws of the
state in which each holder exercising the Warrants resides.
The Warrants are subject to redemption at any time by the Company, on not
less than 30 days' prior written notice, at a price of $0.25 per Warrant, after
the Separation Date and only after the closing sale price per share of the
Common Stock as reported on the Nasdaq Smallcap Market, for a period of 20
consecutive trading days, has been at or above 200 percent of the exercise
price, as adjusted, of the Warrants. Holders of Warrants will automatically
forfeit their rights to purchase the shares of Common Stock or other securities
or property issuable and deliverable upon exercise of the Warrants unless the
Warrants are exercised before the close of business on the business day
immediately prior to the date set for redemption. All of the outstanding
Warrants must be redeemed if any are redeemed. A notice of redemption shall be
mailed to the registered holder of the Warrants by first class mail, postage
prepaid, within five business days after the Company determines to exercise its
right of redemption, but not less than 30 days before the dated fixed for
redemption. The notice of redemption shall specify the per Warrant redemption
price to be paid, and that the right to exercise the Warrants shall terminate at
5:00 p.m. New York City time on the business day immediately preceding the date
fixed for redemption. The Warrants will only be redeemable if, on the date
Warrants are called for redemption, there is an effective registration statement
and current prospectus covering the shares of Common Stock or other securities
issuable upon exercise of the Warrants.
The Warrants may be exercised upon surrender of the certificate(s) therefor
on or prior to 5:00 p.m. New York City time on November 6, 2002 or, if the
Warrants are called for redemption, the business day prior to the redemption
date, as explained above, at the offices of the Company's warrant agent (the
"Warrant Agent") with the subscription on the reverse side of the certificate
completed and executed as indicated, accompanied by payment of the full exercise
price for the number of Warrants being exercised.
In certain cases, the sale of securities by the Company upon exercise of
the Warrants could violate the securities laws of the United States, certain
states or other jurisdictions. The Company has agreed to maintain an effective
registration statement under the 1933 Act at its expense with respect to the
securities underlying the Warrant (and, if necessary, to allow their public
resale without restriction) at all times during the period in which the Warrants
are exercisable. The Company will use its best efforts, and to take such action
under the laws of various states, as may be required to cause the sale of the
securities underlying the Warrants upon their exercise of the Warrants, if in
the opinion of counsel, the sale of securities upon such exercise would be
unlawful. In certain cases, the Company may, but is not required to, purchase
the Warrants submitted for exercise for a cash price equal to the difference
between the market price of the securities obtainable upon such exercise and the
exercise price of such Warrants.
The Warrants contain provisions that protect the holder thereof against
dilution by adjustment of the number of shares of Common Stock or other
securities of the Company purchasable upon exercise of the Warrants in certain
events, such as stock dividends, stock splits, mergers, sale of substantially
all of the Company's assets, and for other extraordinary events.
The Company is not required to issue fractional shares of Common Stock and,
in lieu thereof, will make a cash payment based upon the current market value of
such shares. The holders of the Warrants will not possess any rights as
shareholders of the Company unless and until the holders exercise the Warrants
and then only as a holder of the Common Stock.
TRANSFER AGENT AND WARRANT AGENT
U.S. Stock Transfer Corp. is the transfer agent for the Common Stock and
the Warrant Agent for the 1997-A Warrants and the Warrants, whose address is
1745 Gardena Avenue, Suite 200, Glendale, California 91204-2991.
SHAREHOLDER ACTION
Pursuant to the amended Certificate of Incorporation and the Bylaws of the
Company, with respect to any act or action required of or by the holders of
Common Stock of the Company, the affirmative vote of the holders of a majority
of the issued and outstanding shares of the Common Stock entitled to vote
thereon is sufficient to authorize, affirm, ratify or consent to such act or
actions, except as otherwise provided in its Bylaws or in the Certificate of
Incorporation or the Oklahoma General Corporation Act.
Pursuant to the Oklahoma General Corporation Act, shareholders may take
actions without the holding of a meeting by written consent or consents signed
by the holders of a sufficient number of shares to approve the transaction had
all of the outstanding shares of the capital stock of the Company entitled to
vote thereon been present at a meeting. The Company is required to provide
prompt notice of any corporate action taken without a meeting to those
shareholders who have not consented in writing to such
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corporate action. At any time that the Company has 1,000 or more shareholders
of record, pursuant to the Oklahoma General Corporation Act, any act or action
required of or by the holders of the Company's capital stock entitled to vote
thereon may only be taken pursuant to unanimous affirmative written consent of
the shareholders.
ANTI-TAKEOVER PROVISIONS
The Certificate of Incorporation and Bylaws of the Company, as amended, and
the Oklahoma General Corporation Act include a number of provisions which may
have the effect of encouraging persons considering unsolicited tender offers or
other unilateral takeover proposals to negotiate with the Board of Directors
rather than pursue non-negotiated takeover attempts. The Company believes that
the benefits of these provisions outweigh the potential disadvantages of
discouraging such proposals because, among other things, negotiation of such
proposals might result in an improvement of their terms. The description below
relating to provisions of the Certificate of Incorporation and the Bylaws of the
Company is intended as a summary only and is qualified in its entirety by
reference to the Certificate of Incorporation and the Bylaws of the Company.
See "Item 2. Exhibits."
CLASSIFIED BOARD OF DIRECTORS
The Bylaws of the Company provide that the Board of Directors shall be
comprised of three classes of directors, each class constituting approximately
one-third of the total number of directors with each class serving staggered
three-year terms. The classification of the directors makes it more difficult
for shareholders to change the composition of the Board of Directors. The
Company believes, however, that the longer time required to elect a majority of
a classified board of directors will help ensure continuity and stability of the
Company's management and policies.
The classification provision may also have the effect of discouraging a
third-party from accumulating large blocks of the Common Stock of the Company or
attempting to obtain control of the Company, even though such an attempt might
be beneficial to the Company and its shareholders. Accordingly, shareholders
could be deprived of certain opportunities to sell their shares of Common Stock
at a higher market price than might otherwise be the case.
PREFERRED STOCK
The Certificate of Incorporation of the Company authorizes the issuance of
Preferred Stock in classes, and the Board of Directors of the Company to set and
determine the voting rights, redemption rights, conversion rights and other
rights relating to each such class of Preferred Stock. In some circumstances,
the Preferred Stock could be issued and have the effect of preventing a merger,
tender offer or other takeover attempt which the Board of Directors opposes.
OKLAHOMA ANTI-TAKEOVER STATUTES
The Company will be subject to Section 1090.3 and Sections 1145 through
1155 of the Oklahoma General Corporation Act.
Subject to certain exceptions, Section 1090.3 of the Oklahoma General
Corporation Act prohibits a publicly-held Oklahoma corporation from engaging in
a "business combination" with an "interested
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shareholder" for a period of three years after the date of the transaction in
which such person became an interested shareholder, unless the interested
shareholder attained such status with approval of the board of directors or the
business combination is approved in a prescribed manner, or certain other
conditions are satisfied. A "business combination" includes mergers, asset
sales, and other transactions resulting in a financial benefit to the interested
shareholder. Subject to certain exceptions, an "interested shareholder" is a
person who, together with affiliates and associates, owns, or within the past
three years did own, 15 percent or more of the corporation's voting stock.
In general, Sections 1145 through 1155 of the Oklahoma General Corporation
Act provide that shares ("interested shares") of voting stock acquired (within
the meaning of a "control share acquisition") become nonvoting stock for a
period of three years following such control share acquisition, unless a
majority of the holders of non-interested shares approve a resolution
reinstating the interested shares with the same voting rights that such shares
had before such interested shares became control shares. Any person ("acquiring
person") who proposes to make a control share acquisition may, at the person's
election, and any acquiring person who has made a control share acquisition is
required to, deliver an acquiring person statement to the corporation disclosing
certain prescribed information regarding the acquisition. The corporation is
required to present to the next annual meeting of the shareholders the
reinstatement of voting rights with respect to the control shares that resulted
in the control share acquisition, unless the acquiring person requests a special
meeting of shareholders for such purpose and undertakes to pay the costs and
expenses of such special meeting. In the event voting rights of control shares
acquired in a control share acquisition are reinstated in full and the acquiring
person has acquired control shares with a majority or more of all voting power,
all shareholders of the corporation have dissenters' rights entitling them to
receive the fair value of their shares which will not be less than the highest
price paid per share by the acquiring person in the control share acquisition.
A "control share acquisition" includes the acquisition by any person
(including persons acting as a group) of ownership of, or the power to direct
the exercise of voting power with respect to, control shares (generally shares
having more than 20 percent of all voting power in the election of directors of
a publicly held corporation), subject to certain exceptions including (i) an
acquisition pursuant to an agreement of merger, consolidation, or share
acquisition to which the corporation is a party and is effected in compliance
with certain Sections of the Oklahoma General Corporation Act, (ii) an
acquisition by a person of additional shares within the range of voting power
for which such person has received approval pursuant to a resolution by the
majority of the holders of non-interested shares, (iii) an increase in voting
power resulting from any action taken by the corporation, provided the person
whose voting power is thereby affected is not an affiliate of the corporation,
(iv) an acquisition pursuant to proxy solicitation under and in accordance with
the Securities Exchange Act of 1934, as amended, or the laws of Oklahoma, and
(v) an acquisition from any person whose previous acquisition of shares did not
constitute a control share acquisition, provided the acquisition does not result
in the acquiring person holding voting power within a higher range of voting
power than that of the person from whom the control shares were acquired.
The anti-takeover provisions of the Oklahoma General Corporation Act may
have the effect of discouraging a third party from acquiring large blocks of the
Common Stock of the Company within a short period or attempting to obtain
control of the Company, even though such an attempt might be beneficial to the
Company and its shareholders.
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ITEM 2. EXHIBITS
1.1 Copy of certificate of Common Stock of Registrant is incorporated by
reference to Exhibit 4.1 of the Registration Statement on Form SB-2
(Registration No. 33-80629) filed with the Commission on December 18,
1995.
1.2 Form of certificate of the 1997-A Warrants is incorporated by
reference to Exhibit 1.2 of Amendment No. 2 of the Registration
Statement on Form 8-A as filed with the Commission on January 13,
1998.
1.3 Form of certificate of Redeemable Common Stock Purchase of Registrant
is incorporated by reference to Exhibit 4.8 of Amendment No. 1 to the
Registration Statement on form SB-2 (Registration No. 333-34885) as
filed with the Commission on October 20, 1997.
2.1 Certificate of Incorporation of Registrant is incorporated by
reference to Exhibit 3.1 of the Registration Statement on Form SB-2
(Registration No. 33-80629) filed with the Commission on December 18,
1995.
2.2 Bylaws of Registrant (as amended and restated) are incorporated by
reference to Exhibit 3.2 of the Registration Statement on Form SB-2
(Registration No. 33-80629) filed with the Commission on December 18,
1995.
2.3 The Warrant Agreement between the Registrant and U.S. Stock Transfer
Corp., as amended and restated on January 8, 1998 is incorporated by
reference to Exhibit 2.3 of Amendment No. 2 to Form 8-A Registration
Statement as filed with the Commission on January 13, 1998.
2.4 The Unit and Warrant Agreement between Registrant and U.S. Stock
Transfer Corp., as amended and restated on January 8, 1998 is
incorporated by reference to Exhibit 2.3 of Amendment No. 1 to Form
8-A Registration Statement as filed with the Commission on January 15,
is 1998.
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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 Amendment No.1 to the Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized, on this 30th day of January, 1998.
ADVANTAGE MARKETING SYSTEMS, INC.
By: /s/ ROGER P. BARESEL
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Roger P. Baresel, President
