UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
______________
FORM
8-K/A
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event reported) October 15,
2009
CHINA
MEDIAEXPRESS HOLDINGS, INC.
(Exact
Name of Registrant as Specified in Charter)
Delaware
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001-33746
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20-8951489
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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Room
2805, Central Plaza, Wanchai Hong Kong
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N/A
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
+852 2827
6100
TM
ENTERTAINMENT AND MEDIA, INC.
307 East 87th Street, New
York, NY 10128
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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EXPLANATORY
NOTE
This
8-K/A is being filed solely to address an EDGAR coding error associated with the
original 8-K filed on October 21, 2009. No changes have been made to the
original filing in connection with this submission.
Item 2.01
Completion of
Acquisition or Disposition of Assets.
On
October 15, 2009, pursuant to the terms of a Share Exchange Agreement, dated as
of May 1, 2009, as amended on September 30, 2009 (“Share Exchange Agreement”),
TM Entertainment and Media, Inc. (“TM”) acquired all of the issued and
outstanding capital stock of Hong Kong Mandefu Holding Limited (“CME”) and as a
result, CME became a direct wholly-owned subsidiary of TM (the
“Transaction”).
CME,
through contractual arrangements with Fujian Fenzhong, an entity majority owned
by CME’S former majority shareholder, operates the largest television
advertising network on inter-city express buses in China. While CME
has no direct equity ownership in Fujian Fenzhong, through the contractual
agreements CME receives the economic benefits of Fujian Fenzhong’s
operations.
Pursuant to the Share Exchange
Agreement, TM purchased 100% of the outstanding equity of CME and issued
20.915 million newly issued shares of common stock and paid $10.0 million
in three year, no interest promissory notes. In addition, the former
shareholders of CME may earn up to an additional 15.0 million shares of common
stock subject to the achievement of the following net income targets for 2009,
2010 and 2011:
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Year
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Net Income
(RMB)
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Net Income
(US$)(1)
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Shares
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2009
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287.0 million
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$42.0
million
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1.0
million
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2010
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570.0 million
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$83.5
million
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7.0
million
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2011(2)
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889.0 million
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$130.2
million
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7.0
million
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(1)
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Based
on current exchange rate of 6.83 RMB/US$.
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(2)
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If
CME’s adjusted net income for 2009, 2010 or 2011 does not equal or exceed
the targeted net income threshold for such fiscal year, the earn-out
shares in respect of such fiscal year will not be issued; provided,
however, that if CME’s adjusted net income in the fiscal year immediately
succeeding such non-achieving fiscal year exceeds the sum of (i) the
targeted net income threshold for such immediately succeeding fiscal year
(which, for the fiscal year ending December 31, 2012, the targeted
net income threshold shall be RMB1,155,700,000 ($169.2 million)) and
(ii) the shortfall amount for the non-achieving fiscal year, then the
earn-out shares in respect of such non-achieving fiscal year will be
issued.
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In connection with the approval of the
Transaction at the October 15, 2009 Special Meeting of Stockholders of TM, the
stockholders of TM also approved (i) an amendment to TM’s Amended and Restated
Certificate of Incorporation to remove the prohibition on the consummation of a
Business Combination (as defined therein) if holders of an aggregate of 30% or
more in interest of the shares of TM’s common stock issued in its initial public
offering (“IPO Shares”) exercise their conversion rights, (ii) to amend TM’s
Amended and Restated Certificate of Incorporation to remove the requirement
that only holders of the IPO Shares who vote against the Transaction (as defined
below) may convert their IPO Shares into cash; (iii) to amend TM’s
Amended and Restated Certificate of Incorporation to change TM’s corporate
name to “China MediaExpress Holdings, Inc.,” delete certain provisions that
related to TM as a blank check company and create perpetual existence; (iv) to
amend TM’s Amended and Restated Certificate of Incorporation to increase the
number of shares authorized for issuance; and (v) to elect six persons to CME’s
board of directors to serve for the respective term of office of the class to
which the nominee is elected and until their successors are duly elected and
qualified. Proxies relating to such Special Meeting of Stockholders
were solicited pursuant to TM’s Definitive Proxy Statement on Schedule 14A dated
October 2, 2009 (the “TM Definitive Proxy”), portions of which are incorporated
herein by reference as more fully described below.
BUSINESS
The
business of CME is described in the TM Definitive Proxy, in the section entitled
“Information about Hong Kong Mandefu Holding Limited (“CME”)” beginning on page
107, which is incorporated herein by reference.
RISK
FACTORS
The risks
associated with CME’s business are described in TM’s Definitive Proxy in the
section entitled “Risk Factors” under the subheadings “Risks Relating to Doing
Business in China” beginning on page 26, “Risks Relating to CME” beginning on
page 29 and Risks Relating to CME’s Corporate Structure” beginning on page 42,
each of which is incorporated herein by reference.
FINANCIAL
INFORMATION
The
financial information of CME is included in the TM Definitive Proxy, in the
sections entitled “Selected Consolidated Financial and Operating Data of CME,”
beginning on page 133, “CME Management’s Discussion and Analysis of Financial
Condition and Results of Operations of CME,” beginning on page 135 and under the
heading “Index to Financial Statements – Hong Kong Mandefu Holding Limited”
beginning on page F-28, each of which are incorporated herein by
reference. In addition, the pro forma effects of the Transaction are
reflected in the “Unaudited Pro Forma Condensed Combined Financial Information”
beginning on page 158, which is incorporated herein by reference.
PROPERTIES
The CME
facilities are described in the TM Definitive Proxy in the section entitled
“Information about CME – Facilities,” beginning on page 125, which is
incorporated herein by reference.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
beneficial ownership of the common stock of CME immediately after the
consummation of the Transaction is described in the TM Definitive Proxy in the
section entitled “The Transaction Proposal – Post-Closing Ownership of TM Common
Stock” on page 81 and “Beneficial Ownership of TM Securities” beginning on page
186, each of which is incorporated herein by reference. In connection
with the closing of the Transaction, the holders of 9,602,587 shares purchased
in TM’s initial public offering elected to convert their shares into funds held
in TM’s trust account, resulting in the 13,266,684 shares held by Mr. Zheng
Cheng representing approximately 55.5%, the 6,095,085 shares held by Thousand
Space Holding Limited representing approximately 25.5% and the 2,303,231
shares held by Bright Elite Management Limited representing approximately 9.6%,
respectively, of the outstanding shares of common stock of CME.
DIRECTORS
AND EXECUTIVE OFFICERS
The
directors and executive officers of the Company immediately after the
consummation of the Transaction are described in the TM Definitive Proxy in the
section entitled “Management -- Directors, Management and Key Employees
Following the Transaction,” beginning on page 177, which is incorporated herein
by reference.
EXECUTIVE
COMPENSATION
The
executive compensation of the CME executive officers and directors is described
in the TM Definitive Proxy in the section entitled “Compensation Discussion and
Analysis,” beginning on page 183, which is incorporated herein by
reference.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
The
description of certain relationships and related transactions of CME are
described in footnote 11 to the CME audited financial statements contained in
the TM Definitive Proxy beginning on page F-43, which is incorporated herein by
reference.
LEGAL
PROCEEDINGS
The legal
proceedings of CME are described in the TM Definitive Proxy in the section
entitled “Information about Hong Kong Mandefu Holding Limited (“CME”) – Legal
and Administrative Proceedings,” on page 125, and “Information about TM
Entertainment and Media, Inc. – Legal Proceedings” on page 168, each of which is
incorporated herein by reference.
MARKET
PRICE OF AND DIVIDENDS ON THE REGISTRANT’S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
Information
about the market price, number of stockholders of record and dividends is
described in the TM Definitive Proxy in the section entitled “Price Range of
Securities and Dividends” on Page 60, which is incorporated herein by
reference.
The
closing price per share of CME’s common stock, warrants and units on NYSE Amex
on October 19, 2009 was $8.05, $2.40 and $10.00, respectively.
RECENT
SALES OF UNREGISTERED SECURITIES
In
connection with the consummation of the Transaction, the former stockholders of
CME were issued an aggregate of 20,915,000 shares of common stock and a finder
was issued 100,000 shares of common stock. The shares of common stock
issued to the CME stockholders and such finder were not registered under the
Securities Act of 1933, as amended (“Securities Act”) in reliance upon the
exemption from the registration requirements provided in Section 4(2) of the
Securities Act. In addition, TM issued promissory notes to such
former stockholders in aggregate principal amount of $10 million. The
description of such issuance is contained in the TM Definitive Proxy in the
sections entitled “The Transaction Proposal” beginning on Page 67 and “Unaudited
Pro Forma Condensed Combined Financial Information” beginning on page 158, each
of which is incorporated herein by reference.
DESCRIPTION
OF REGISTRANT’S SECURITIES
The
description of CME’s units, common stock, warrants and other securities are
described in the final prospectus relating to TM’s initial public offering dated
October 17, 2007 filed pursuant to Rule 424(b)(4), in the section entitled
“Description of Securities” beginning on page 53 and in the TM Definitive Proxy
in the section entitled “Description of TM Common Stock and Other TM
Securities,” beginning on page 188, each of which is incorporated herein by
reference.
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
CME’s
Amended and Restated Certificate of Incorporation provides that all directors,
officers, employees and agents of the company are entitled to be indemnified by
the company to the fullest extent permitted by Section 145 of the Delaware
General Corporation Law. The description of the indemnification
provisions are set forth in Part II of TM’s Registration Statement in Amendment
No. 4 to Form S-1 (No. 333-143856), dated October 12, 2007, in Item 14.
Indemnification of Directors and Officers”
,
beginning on page II-1 is
incorporated herein by reference.
FINANCIAL
STATEMENTS AND SUPPLEMENTARY DATA
The
Financial Statements and Exhibits are incorporated by reference from Item 9.01
of this Form 8-K.
FINANCIAL
STATEMENTS AND EXHIBITS
The
Financial Statements and Exhibits are incorporated by reference from Item 9.01
of this Form 8-K.
Item
2.02
Results of Operations
and Financial Condition.
Reference
is made to the disclosure set forth under Item 2.01 of this Current Report on
Form 8-K, which disclosure is incorporated herein by reference, concerning
“Financial Information.”
Item
2.03
Creation of a Direct
Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of
a Registrant
Reference is made to the disclosure
described in the TM Definitive Proxy in the section entitled “The Transaction
Proposal” beginning on Page 67, which is incorporated herein by
reference.
Item
3.02
Unregistered Sales of
Equity Securities.
Reference
is made to the disclosure set forth under Item 2.01 of this Current Report on
Form 8-K, which disclosure is incorporated herein by reference, concerning
“Recent Sales of Unregistered Securities.”
Item
4.01
Changes
in and Disagreements With Accountants on Accounting and Financial
Disclosure
In
connection with the closing of the Transaction, Eisner LLP
(“Eisner”) was replaced as TM’s independent registered
public accounting firm. The reports of Eisner on TM’s financial statements for
the year ended December 31, 2008 and the period ended December 31, 2007
contained no adverse opinion or a disclaimer of opinion and were not qualified
or modified as to uncertainty, audit scope or accounting principles, except with
respect to the TM’s ability to continue as a going concern as described
therein. During TM’s period ended December 31, 2007, the year
ended December 31, 2008 and through June 30, 2009, there were no disagreements
with Eisner on any matter of accounting principles or practices, financial
statement disclosure, or auditing scope or procedure, which disagreements, if
not resolved to the satisfaction of Eisner would have caused it to make
reference to the subject matter of such disagreements in its report on TM’s
financial statements for such periods. Also, there were no reportable
events described under Item 304(a)(1)(iv) of Regulation S-K for the period from
May 1, 2007 through December 31, 2008 or through the date of this report. CME
has requested that Eisner furnish a letter addressed to the Securities and
Exchange Commission stating whether it agrees with the statements made by it
herein, and such letter is included in this Current Report on Form
8-K. The replacement was not specifically considered by the Board of
Directors of TM.
AJ Robbins PC (“AJR”) is being retained as the new independent
registered public accounting firm. During the period from January 1, 2007
through December 31, 2008, and through the date of this Current Report on Form
8-K, TM did not consult with AJR regarding any of the matters or events set
forth in Item 304(a)(2)(i) and (ii) of Regulation S-K although CME did consult
with AJR during that time regarding such matters.
Item
5.01
Changes
in Control of Registrant.
Reference
is made to the disclosure described in the TM Definitive Proxy in the section
entitled “Description of TM Common Stock and Other TM Securities,” beginning on
page 188, which disclosure is incorporated herein by reference, as well as the
additional disclosures set forth in this report.
Item
5.02
Departure of
Directors or Principal Officers; Election of Directors; Appointment of Principal
Officers; Compensatory Arrangements of Certain Officers.
Reference
is made to the disclosure set forth under Item 2.01 of this Current Report on
Form 8-K, which disclosure is incorporated herein by reference, concerning
“Directors and Executive Officers” and “Executive Compensation.”
Item
5.06
Change in Shell
Company Status
The
material terms of the transaction by which TM acquired CME as its wholly-owned
subsidiary are described in the TM Definitive Proxy in the section entitled “The
Transaction Proposal,” beginning on page 67 and is incorporated herein by
reference.
Item
9.01
Financial
Statements and Exhibits
The
financial information of CME is included in the TM Definitive Proxy, in the
sections entitled “Selected Consolidated Financial and Operating Data of CME,”
beginning on page 133, “CME Management’s Discussion and Analysis of Financial
Condition and Results of Operations of CME,” beginning on page 135 and under the
heading “Index to Financial Statements – Hong Kong Mandefu Holding Limited”
beginning on page F-28, each of which are incorporated herein by
reference. In addition, the pro forma effects of the Transaction are
reflected in the “Unaudited Pro Forma Condensed Combined Financial Information”
beginning on page 158, which is incorporated herein by reference, subject to the
number of actual share conversions effected being approximately 94%, resulting
in 9,602,587 shares purchased in TM’s initial public offering being converted
into approximately $76 million held in TM’s trust account.
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Exhibit
No
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Description
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16.1
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Letter of
Eisner LLP dated October 21, 2009.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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CHINA MEDIAEXPRESS HOLDINGS,
INC.
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Date: October
21, 2009
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By:
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/s/
Zheng Cheng
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Name: Zheng
Cheng
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Title: Chief
Executive Officer
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