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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 (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 (Zip Code)
offices)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
COMMON STOCK AMERICAN STOCK EXCHANGE
$.0001 PAR VALUE PER SHARE
REDEEMABLE COMMON STOCK AMERICAN STOCK EXCHANGE
PURCHASE WARRANTS
(EACH EXERCISABLE TO PURCHASE ONE SHARE OF
COMMON STOCK, $.0001 PAR VALUE
PER SHARE ONE OR BEFORE NOVEMBER 6, 2002)
1997-A WARRANTS AMERICAN STOCK EXCHANGE
(EACH EXERCISABLE TO PURCHASE ONE SHARE OF
COMMON STOCK, $.0001 PAR VALUE
PER SHARE ONE OR BEFORE NOVEMBER 6, 2002)
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 ("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").
Registrant hereby registers pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended, its (i) Common Stock, $.0001 par value per
share, (ii) Redeemable Common Stock Purchase Warrants ("Redeemable Warrants'),
each exercisable for the purchase of one share of Common Stock, $.0001 par value
per share on or before November 6, 2002) and (iii) 1997-A Warrants, each
exercisable for the purchase of one share of Common Stock, $.0001 par value per
share on or before November 6, 2002. The Board of Directors of the Company has
authorized the issuance of up to and 1,625,000 Warrants in accordance with the
provisions of that certain Unit and Warrant Agreement between the Company and
U.S. Stock Transfer Corp., dated November 6, 1997 (the "Unit and Warrant
Agreement"). Furthermore, the Board of Directors of the Company has authorized
the issuance of the 337,336 outstanding 1997-A Warrants in accordance with the
provisions of that certain Warrant Agreement between the Company and U.S. Stock
Transfer Corp., dated January 20, 1997 as amended and restated January 8, 1998.
The following description of certain matters relating to the Common Stock,
the Preferred Stock, the Redeemable Warrants and 1997-A Warrants is a summary
and is qualified in its entirety by the provisions of Registrant's Certificate
of Incorporation and the Unit and Warrant Agreement which were been filed as
exhibits to the Company's Registration Statement on Form SB-2 (Registration No.
333-34885) and the Warrant Agreement, as amended and restated, which was filed
as an exhibit to the Company's Amendment No. 2 to Form 8-A Registration
Statement filed with the Commission on January 13, 1998. 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.
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
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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.
REDEEMABLE COMMON STOCK PURCHASE WARRANTS
The Company has 1,625,000 authorized and 1,495,000 outstanding Redeemable
Warrants. Each Redeemable Warrant entitles the holder to purchase one share of
Common Stock at any time upon payment of the $3.40 exercise price. The number
and kind of securities or other property for which the Redeemable Warrants are
exercisable are subject to adjustments in certain events, such as mergers,
reorganizations or stock splits, to prevent dilution. Unless previously
redeemed, the Redeemable Warrants are exercisable until 5:00 p.m., New York City
time on November 6, 2002, and then only in the event (i) a current prospectus
under the Securities Act of 1933, as amended (the "1933 Act"), relating to the
shares of Common Stock issuable upon exercise of the Redeemable 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 the
holder exercising the Redeemable Warrants resides.
The Redeemable Warrants are subject to redemption at any time by the
Company, on not less than 30 days' written notice, at a price of $0.25 per
Redeemable Warrants only after the closing sale price per share of the Common
Stock, for a period of 20 consecutive trading days, has been at or above $6.80.
Holders of Redeemable 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 Redeemable Warrants unless the Redeemable
Warrants are exercised before the close of business on the business day
immediately prior to the date set for redemption. All of the outstanding
Redeemable Warrants must be redeemed if any are redeemed. A notice of
redemption shall be mailed to the registered holder of the Redeemable 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 date fixed for redemption. The notice of redemption shall
specify the per Redeemable Warrant redemption price to be paid, and that the
right to exercise the Redeemable Warrants shall terminate at 5:00 p.m. New York
City time on the business day immediately preceding the date fixed for
redemption. The Redeemable Warrants will only be redeemable if, on the date the
Redeemable 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 Redeemable Warrants.
The Redeemable 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 Redeemable 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 Warrants (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
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take such actions under the laws of various states, as may be required to cause
the sale of the securities underlying the Redeemable Warrants upon their
exercise to be lawful. However, the Company is not required to honor the
exercise of the Redeemable 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 Redeemable 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
Redeemable Warrants.
The Redeemable 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 Redeemable 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 Redeemable Warrants will not possess
any rights as shareholders of the Company unless and until the holders exercise
the Redeemable Warrants and then only as a holder of the Common Stock.
1997-A WARRANTS
The Company has 337,336 authorized and outstanding 1997-A Warrants. Each
1997-A Warrant entitles the holder to purchase one share of Common Stock for
$3.40 at any time until 5:00 p.m. Central Standard time on November 6, 2002.
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 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 at 5:00 p.m. Central Standard time 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 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
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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.
TRANSFER AGENT AND WARRANT AGENT
UMB Bank, N.A. is the transfer agent and registrar for the Common Stock and
the Warrant Agent for the Redeemable Warrants and 1997-A Warrants, whose address
is UMB Bank, N.A., 928 Grand Boulevard, 13th Floor, Kansas City, Kansas 64106.
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
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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 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
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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.
ITEM 2. EXHIBITS
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1.1 Form 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 Redeemable Common Stock Purchase Warrant
of Registrant is incorporated by reference to Exhibit 4.8 of the
Amendment No. 1 to the Registration Statement on Form SB-2
(Registration No. 333-34885) filed with the Commission on October 20,
1997.
1.3 Form of certificate of the 1997-A Warrant of Registrant is
incorporated by reference to Exhibit 1.2 of Amendment No. 2 to the
Form 8-A Registration Statement filed with the Commission on January
13, 1998.
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. 333-34885) filed with the Commission on September 3,
1997.
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. 333-34885) filed with the Commission on September 3,
1997.
2.3 The Unit and Warrant Agreement between the Registrant and U.S. Stock
Transfer Corp. dated November 6, 1997 is incorporated by reference to
Exhibit 4.9 of Amendment No. 2 to the Registration Statement on Form
SB-2 (Registration No. 333-34885) filed with the Commission on
November 3, 1997.
2.4 The Warrant Agreement between the Registrant and U.S. Stock Transfer
Corp. is incorporated by reference to Exhibit 2.3 Amendment No. 2 to
the Form 8-A Registration Statement filed with the Commission on
January 13, 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 Registration Statement to be signed
on its behalf by the undersigned, thereto duly authorized, on this 9th day of
June, 1999.
ADVANTAGE MARKETING SYSTEMS, INC.
By: /s/ ROGER P. BARESEL
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Roger P. Baresel, President
