FORM 8-A/A
(AMENDMENT NO. 1)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
LIQUID AUDIO, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 77-0421089
(State of incorporation (I.R.S. Employer Identification No.)
or organization)
800 Chesapeake Drive
Redwood City, CA 94063
----------------------
(Address of principal executive offices, including 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: Not applicable
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on which
TITLE OF EACH CLASS TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
--------------------------------------- ------------------------------
None
Securities to be registered pursuant to Section 12(g) of the Act:
Name of each exchange on which
TITLE OF EACH CLASS TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
--------------------------------------- ------------------------------
Preferred Stock Purchase Rights The Nasdaq National Market
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
------------------------------------------
The response to Item 1 is hereby amended to read in its entirety as
follows:
Liquid Audio, Inc., a Delaware corporation (the Company") entered into
a Preferred Stock Rights Agreement, dated as of August 7, 2001, as amended as of
July 14, 2002 (the "Rights Agreement"), between the Company and Mellon Investor
Services, LLC, as Rights Agent (the "Rights Agent"), pursuant to which the
Company's Board of Directors declared a dividend of one right (a "Right") to
purchase one one-thousandth share of the Company's Series A Participating
Preferred Stock ("Series A Preferred") for each outstanding share of Common
Stock, par value $0.001 per share ("Common Shares"), of the Company. The
dividend is payable on August 27, 2001 (the "Record Date"), to shareholders of
record as of the close of business on that date. Each Right entitles the
registered holder to purchase from the Company one one-thousandth of a share of
Series A Preferred at an exercise price of $17 (the "Purchase Price"), subject
to adjustment.
The following summary of the principal terms of the Rights Agreement is
a general description only and is subject to the detailed terms and conditions
of the Rights Agreement. A copy of the First Amendment to the Rights Agreement,
dated as of July 14, 2002, is attached as Exhibit 4.2 to this Registration
Statement and is incorporated herein by reference.
RIGHTS EVIDENCED BY COMMON SHARE CERTIFICATES
The Rights will not be exercisable until the Distribution Date (defined
below). Certificates for the Rights ("Rights Certificates") will not be sent to
shareholders and the Rights will attach to and trade only together with the
Common Shares. Accordingly, Common Share certificates outstanding on the Record
Date will evidence the Rights related thereto, and Common Share certificates
issued after the Record Date will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender or transfer of any certificates for
Common Shares, outstanding as of the Record Date, even without notation or a
copy of the Summary of Rights being attached thereto, also will constitute the
transfer of the Rights associated with the Common Shares represented by such
certificate. Distribution Date.
The Rights will be separate from the Common Shares, Rights Certificates
will be issued and the Rights will become exercisable upon the earlier of (a)
the tenth day (or such later date as may be determined by the Company's Board of
Directors) after a person or group of affiliated or associated persons
("Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 10% or more of the Common Shares then outstanding, or (b) the tenth
business day (or such later date as may be determined by the Company's Board of
Directors) after a person or group announces a tender or exchange offer, the
consummation of which would result in ownership by a person or group of 10% or
more of the Company's then outstanding Common Shares. The earlier of such dates
is referred to as the "Distribution Date".
ISSUANCE OF RIGHTS CERTIFICATES; EXPIRATION OF RIGHTS
As soon as practicable following the Distribution Date, a Rights
Certificate will be mailed to holders of record of the Common Shares as of the
close of business on the Distribution Date and such Certificate alone will
evidence the Rights from and after the Distribution Date. The Rights will expire
on the earliest of (i) August 27, 2011, (the "Final Expiration Date"), or (ii)
redemption or exchange of the Rights as described below.
2
INITIAL EXERCISE OF THE RIGHTS
Following the Distribution Date, and until one of the further events
described below, holders of the Rights will be entitled to receive, upon
exercise and the payment of the Purchase Price, one one-thousandth share of the
Series A Preferred. In the event that the Company does not have sufficient
Series A Preferred available for all Rights to be exercised, or the Board
decides that such action is necessary and not contrary to the interests of
Rights holders, the Company may instead substitute cash, assets or other
securities for the Series A Preferred for which the Rights would have been
exercisable under this provision or as described below.
RIGHT TO BUY COMPANY COMMON SHARES
Unless the Rights are earlier redeemed, in the event that an Acquiring
Person obtains 10% or more of the Company's then outstanding Common Shares, then
each holder of a Right which has not theretofore been exercised (other than
Rights beneficially owned by the Acquiring Person, which will thereafter be
void) will thereafter have the right to receive, upon exercise, Common Shares
having a value equal to two times the Purchase Price. Rights are not exercisable
following the occurrence of an event as described above until such time as the
Rights are no longer redeemable by the Company as set forth below.
RIGHT TO BUY ACQUIRING COMPANY STOCK
Similarly, unless the Rights are earlier redeemed, in the event that,
after an Acquiring Person obtains 10% or more of the Company's then outstanding
Common Shares, (i) the Company is acquired in a merger or other business
combination transaction, or (ii) 50% or more of the Company's consolidated
assets or earning power are sold (other than in transactions in the ordinary
course of business), proper provision must be made so that each holder of a
Right which has not theretofore been exercised (other than Rights beneficially
owned by the Acquiring Person, which will thereafter be void) will thereafter
have the right to receive, upon exercise, shares of common stock of the
acquiring company having a value equal to two times the Purchase Price.
EXCHANGE PROVISION
At any time after an Acquiring Person obtains 10% or more of the
Company's then outstanding Common Shares and prior to the acquisition by such
Acquiring Person of 50% or more of the Company's outstanding Common Shares, the
Board of Directors of the Company may exchange the Rights (other than Rights
owned by the Acquiring Person), in whole or in part, at an exchange ratio of one
Common Share per Right.
REDEMPTION
At any time on or prior to the Close of Business on the earlier of (i)
the fifth day following the attainment of 10% or more of the Company's then
outstanding Common Shares by an Acquiring Person (or such later date as may be
determined by action of the Company's Board of Directors and publicly announced
by the Company), or (ii) the Final Expiration Date, the Company may redeem the
Rights in whole, but not in part, at a price of $0.001 per Right.
ADJUSTMENTS TO PREVENT DILUTION
The Purchase Price payable, the number of Rights, and the number of
Series A Preferred or Common Shares or other securities or property issuable
upon exercise of the Rights are subject to adjustment from time to time in
connection with the dilutive issuances by the Company as set forth in the
3
Rights Agreement. With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price.
CASH PAID INSTEAD OF ISSUING FRACTIONAL SHARES
No fractional Common Shares will be issued upon exercise of a Right
and, in lieu thereof, an adjustment in cash will be made based on the market
price of the Common Shares on the last trading date prior to the date of
exercise.
NO SHAREHOLDERS' RIGHTS PRIOR TO EXERCISE
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company (other than any rights resulting from
such holder's ownership of Common Shares), including, without limitation, the
right to vote or to receive dividends.
AMENDMENT OF RIGHTS AGREEMENT
The terms of the Rights and the Rights Agreement may be amended in any
respect without the consent of the Rights holders on or prior to the
Distribution Date; thereafter, the terms of the Rights and the Rights Agreement
may be amended without the consent of the Rights holders in order to cure any
ambiguities or to make changes which do not adversely affect the interests of
Rights holders (other than the Acquiring Person).
RIGHTS AND PREFERENCES OF THE SERIES A PREFERRED
Each one one-thousandth of a share of Series A Preferred has rights and
preferences substantially equivalent to those of one Common Share. No Voting
Rights
Rights will not have any voting rights.
CERTAIN ANTI-TAKEOVER EFFECTS
The Rights approved by the Board are designed to protect and maximize
the value of the outstanding equity interests in the Company in the event of an
unsolicited attempt by an acquirer to take over the Company in a manner or on
terms not approved by the Board of Directors. Takeover attempts frequently
include coercive tactics to deprive the Company's Board of Directors and its
shareholders of any real opportunity to determine the destiny of the Company.
The Rights have been declared by the Board in order to deter such tactics,
including a gradual accumulation of shares in the open market of 10% or greater
position to be followed by a merger or a partial or two-tier tender offer that
does not treat all shareholders equally. These tactics unfairly pressure
shareholders, squeeze them out of their investment without giving them any real
choice and deprive them of the full value of their shares.
The Rights are not intended to prevent a takeover of the Company and
will not do so. Subject to the restrictions described above, the Rights may be
redeemed by the Company at $0.001 per Right at any time prior to the
Distribution Date. Accordingly, the Rights should not interfere with any merger
or business combination approved by the Board of Directors.
However, the Rights may have the effect of rendering more difficult or
discouraging an acquisition of the Company deemed undesirable by the Board of
Directors. The Rights may cause substantial dilution to a person or group that
attempts to acquire the Company on terms or in a manner not approved by the
Company's Board of Directors, except pursuant to an offer conditioned upon the
negation, purchase or
4
redemption of the Rights. Issuance of the Rights does not in any way weaken the
financial strength of the Company or interfere with its business plans. The
issuance of the Rights themselves has no dilutive effect, will not affect
reported earnings per share, should not be taxable to the Company or to its
shareholders, and will not change the way in which the Company's shares are
presently traded. The Company's Board of Directors believes that the Rights
represent a sound and reasonable means of addressing the complex issues of
corporate policy created by the current takeover environment.
Item 2. EXHIBITS.
--------
3.1 Amended and Restated Certificate of Incorporation (1)
3.2 Bylaws, as amended (2)
4.1 Preferred Stock Rights Agreement, dated as of August 7, 2001, between
Liquid Audio, Inc. and Mellon Investor Services, LLC, including the
Certificate of Designation, the form of Rights Certificate and the
Summary of Rights attached thereto as Exhibits A, B, and C,
respectively (3).
4.2 First Amendment to the Preferred Stock Rights Agreement, dated as
of July 14, 2002.
---------------
(1) Incorporated by reference to Exhibits to the Company's Registration
Statement on Form S-1 and all amendments thereto, Registration No.
333-77707, filed with the Securities and Exchange Commission on May 4,
1999 and declared effective July 8, 1999.
(2) Incorporated by reference to Exhibits to the Company's Form 10-Q filed
with the Securities and Exchange Commission on August 14, 2000.
(3) Incorporated by reference to Exhibits to the Company's Form 8-A12G
filed with the Securities and Exchange Commission on August 15, 2001.
5
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.
Date: July 16, 2002 LIQUID AUDIO, INC
By: /S/ GERALD KEARBY
--------------------------
Name: Gerald Kearby
Title: Chief Executive Officer
6