UNITED STATES
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
Entrade Inc.
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(Exact name of registrant as specified in its charter)
Pennsylvania 52-2153008
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
521 Fellowship Road
Mount Laurel, New Jersey 08054
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(Address of principal (Zip Code)
executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which each class is
to be so registered to be registered
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Common Stock, no par value The New York Stock Exchange
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 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.
General
The summary of the terms of the stock of Entrade Inc. set forth below
does not purport to be complete and is subject to and qualified in its entirety
by reference to the Articles of Incorporation and Bylaws of Entrade and the
provisions of Pennsylvania law.
Authorized Capital Stock
The total number of shares of all classes of stock that Entrade has
authority to issue is 44,000,000 shares, of which 40,000,000 are shares of
common stock, without par value, and 4,000,000 are shares of preferred stock,
$1,000 par value per share. At February 23, 1999, 2,000,000 shares of common
stock were issued and outstanding and no shares of preferred stock were
outstanding.
The additional shares of authorized stock available for issuance by
Entrade might be issued at times and under circumstances that would have a
dilutive effect on earnings per share and on the equity ownership of the holders
of Entrade common stock. The ability of the Entrade board of directors to issue
additional shares of stock could enhance the Entrade board of directors' ability
to negotiate on behalf of the shareholders in a takeover situation and also
could be used by the Entrade board of directors to make a change in control more
difficult, thereby denying shareholders the potential to sell their shares at a
premium and entrenching current management.
Common Stock
Holders of Entrade common stock are entitled to one vote per share on
all matters voted on generally by the shareholders, including the election of
directors, and, except as otherwise required by law or except as provided with
respect to any series of Entrade preferred stock, the holders of shares of
Entrade common stock possess all voting power. The Articles of Incorporation of
Entrade provide that the shareholders of Entrade do not have the right to
cumulate their votes for the election of directors. Thus, the holders of more
than one-half of the outstanding shares of Entrade common stock will be able to
elect all the directors of Entrade then standing for election and holders of the
remaining shares will not be able to elect any director.
Subject to any preferential rights of any series of Entrade preferred
stock, holders of shares of Entrade common stock are entitled to receive
dividends on these shares out of assets legally available for distribution when,
as and if authorized and declared by the Entrade board of directors and to share
ratably in the assets of Entrade legally available for distribution to its
shareholders in the event of its liquidation, dissolution or winding up.
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Holders of Entrade common stock have no preemptive or subscription
rights and there are no conversion rights or redemption or sinking fund
provisions with respect to those shares. The rights, preferences and privileges
of holders of Entrade common stock will be subject to the rights of the holders
of any series of Entrade preferred stock that Entrade may issue in the future.
Preferred Stock
The Entrade board of directors is authorized to issue the 4,000,000
authorized shares of Entrade preferred stock from time to time in one or more
series. The Entrade board of directors, without further approval of the holders
of Entrade common stock, is authorized to fix the dividend rights and terms,
conversion rights, voting rights, redemption rights and terms, liquidation
preferences, sinking funds and any other rights, preferences, privileges and
restrictions applicable to each authorized series of Entrade preferred stock.
The Entrade board of directors could authorize the issuance of shares of Entrade
preferred stock with terms and conditions which could discourage a takeover or
other transaction that holders of some or a majority of shares of Entrade common
stock might believe to be in their best interests or in which those holders
might receive a premium for their shares of stock over the then market price of
those shares.
Transfer Agent
The initial transfer agent and registrar for the Entrade common stock
will be ChaseMellon Shareholder Services, LLC.
Anti-Takeover Provisions
Charter Anti-Takeover Provisions
The Articles of Incorporation of Entrade provide that in the event that
the holders of the stock of Entrade outstanding and entitled to vote at a
meeting with respect to a particular matter are entitled to vote on:
o a proposal that Entrade enter into a merger or consolidation with
any person, or that Entrade sell, lease or exchange substantially
all of its assets and property to any person, and the person and
his or its affiliates, singly or in the aggregate, own or control,
directly or indirectly, five percent or more of the voting stock
of Entrade; or
o a proposal to reclassify securities, recapitalize or any other
transaction, except redemptions permitted by the terms of the
security to be redeemed or repurchased by Entrade of its
securities for cancellation or for its treasury, designed to
decrease the number of holders of the voting stock of Entrade
remaining after any person has acquired five percent of the voting
stock of Entrade,
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the affirmative vote of the holders of shares of the voting stock of Entrade
representing at least 80% of the votes entitled to be cast at a meeting of the
shareholders is required for the approval of the proposal; provided, however,
that these requirements do not apply to any described merger, consolidation or
sale of assets and property:
o that has been approved by a resolution duly adopted by a majority
of the Entrade directors in office, although less than a quorum,
and the affirmative vote of the holders of shares of voting stock
of Entrade representing at least a majority of the votes entitled
to be cast at a meeting of shareholders called for that purpose;
or
o between Entrade and another corporation, 50% or more of the voting
stock of which is owned by Entrade, if Entrade is the survivor or
purchaser.
Any amendment to this anti-takeover provision requires either:
o the affirmative vote of the holders of shares of the voting stock
of Entrade representing at least 80% of the votes entitled to be
cast at a meeting of the shareholders; or
o the affirmative vote of at least 80% of the Entrade directors in
office, although less than a quorum, and the affirmative vote of
the holders of shares of the voting stock of Entrade representing
at least a majority of the votes entitled to be cast at the
meeting of shareholders.
The Articles of Incorporation of Entrade also contain a provision that
shareholders do not have cumulative voting rights with respect to election of
directors.
Bylaw Anti-Takeover Provisions
Entrade's Bylaws require any shareholder who desires to nominate a
candidate for election as a director to provide background information in
writing concerning the proposed nominee not later than 120 days before the first
anniversary of the date of the preceding annual meeting of shareholders.
Anti-Takeover Provisions under Pennsylvania Law
Pennsylvania has also enacted laws that may be considered
"anti-takeover" in effect. One provision permits directors, in considering the
best interests of Entrade, to consider the effects of any action upon its
employees, suppliers, customers, shareholders and creditors and the communities
in which Entrade maintains facilities. The effect of this provision is to put
the considerations of these constituencies on parity with one another, with the
result that no one group, including shareholders, is required to be the dominant
or controlling concern of directors in determining what is in the best interests
of Entrade. This provision applies to all Pennsylvania corporations.
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Other provisions under Pennsylvania law that may be considered
anti-takeover in effect include the authorization for the adoption of
shareholder rights or "poison pill" plans and the prohibition of shareholders'
calling a special meeting of shareholders, taking action by less than unanimous
written consent or proposing an amendment to the Articles of Incorporation of
Entrade.
Entrade is subject to additional anti-takeover provisions under
Pennsylvania law. A summary of these anti-takeover provisions is as follows:
Business Combinations. This provision prohibits any person or group
that acquires at least 20% of the voting power of a corporation from effecting a
business combination with the corporation, including a merger, an asset sale and
recapitalizations described in the statute, for a period of up to five years
from the date the person acquired that voting power. The corporation's board of
directors may opt out of this provision on a case-by-case basis by approving a
particular business combination prior to the date the person or group acquires
20% of the voting power.
Control-Share Acquisitions. This provision prevents a person or group
that crosses the stock ownership thresholds of 20%, 33-1/3% or 50% for the first
time from voting shares beneficially owned by the person unless voting power is
restored to those shares by a vote of all shareholders and a vote of
disinterested shareholders at a shareholders meeting. Also, any business
combinations occurring after the restoration of voting power will require the
acquiring person to pay severance compensation to Pennsylvania employees of the
corporation whose employment is terminated, other than for willful misconduct
connected with the work of the employee, within 90 days before or 24 months
after the restoration of voting power.
Disgorgement. This provision requires any person or group that acquires
20% or more of the voting power of a corporation to disgorge to the corporation
all profits realized from the sale of equity securities of the corporation
within 18 months after acquiring this control status if the person or group
purchased equity securities of the corporation within 24 months prior to, or 18
months after, the acquisition of control status.
The Articles of Incorporation of Entrade provide that other
anti-takeover provisions under Pennsylvania law are not applicable to Entrade.
Limitation of Liability
As permitted by the provisions for indemnification of directors and
officers under Pennsylvania law, which applies to Entrade, Entrade's Bylaws
provide for indemnification of directors and officers for all expense, liability
and loss, including without limitation attorneys' fees, judgments, fines, taxes,
penalties and amounts paid in settlement, reasonably incurred or suffered by the
officer or director in any threatened, pending or completed action, suit or
proceeding, including without limitation an action, suit or proceeding by or in
the right of Entrade, whether civil, criminal, administrative, investigative or
through arbitration, unless
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the act or failure to act giving rise to the claim for indemnification is
determined by a court to have constituted willful misconduct or recklessness.
The right to indemnification provided in Entrade's Bylaws includes the
right to have the expenses incurred by an officer or director in defending any
proceeding paid by Entrade in advance of the final disposition of the proceeding
to the fullest extent permitted by Pennsylvania law; provided that, if
Pennsylvania law continues so to require, the payment of the expenses incurred
by the officer or director in advance of the final disposition of a proceeding
may be made only upon delivery to Entrade of an undertaking, by or on behalf of
the officer or director, to repay all amounts so advanced without interest if it
is ultimately determined that the officer or director is not entitled to be
indemnified under Entrade's Bylaws or otherwise. Indemnification under these
provisions continues as to a person who has ceased to be a director or officer
of Entrade and inures to the benefit of his or her heirs, executors and
administrators.
Entrade's Bylaws also avail directors of the Pennsylvania law limiting
directors' liability for monetary damages for any action taken or any failure to
take any action to those cases where they have breached their fiduciary duty
under Pennsylvania law and the breach constitutes self-dealing, willful
misconduct or recklessness. This limitation of liability does not apply to the
responsibilities or liabilities of a director under any criminal statute or to
the liabilities of a director for payment of taxes under local, Pennsylvania or
federal law.
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Item 2. Exhibits.
Exhibit No. Description of Exhibit
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1 Articles of Incorporation of the Registrant.
(Incorporated by reference to Exhibit 3.1 filed
on May 24, 1999 under the Registrant's Form S-4
Registration Statement No. 333-79175.)
2 By-laws of the Registrant, as amended
(incorporated by reference to Exhibit 3.2 filed
on May 24, 1999 under the Registrant's Form S-4
Registration Statement No. 333-79175.)
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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.
ENTRADE INC.
Dated: August 31, 1999 By:/s/ Robert D. Kohn
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Robert D. Kohn,
Chairman and Chief Executive
Officer
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