Unassociated Document
As filed
with the Securities and Exchange Commission on August 16, 2010
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
________________
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________
CHINA
MEDIAEXPRESS HOLDINGS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
|
20-8951489
|
7310
|
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
(IRS
Employer Identification No.)
|
(Primary
Standard Industrial
Classification
Code Number)
|
Room
2805, Central Plaza, Wanchai Hong Kong
+852 2827
6100
(Address,
including zip code, and telephone number, including area code, of Registrant’s
Principal executive Offices)
Law
Debenture Corporate Services Inc.
400
Madison Avenue, 4th
Floor
New York,
NY 10017
+1 212
750-6474
(Name,
address, including zip code, and telephone number, including area code, of Agent
for Service))
with a
copy to:
Mitchell
S. Nussbaum, Esq.
Loeb
& Loeb LLP
345
Park Avenue
New
York, NY 10154
(212)
407-4000
Approximate
date of proposed sale to the public: As soon as practicable after the
effective date of this Registration Statement.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. þ
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
form is a post-effective amendment filed pursuant to Rule 462(d) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, please check
the following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, please
check the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated filer o
|
Accelerated
filer þ
|
Non-accelerated
filer o
(Do
not check if a smaller reporting company)
|
Smaller
reporting company o
|
CALCULATION
OF REGISTRATION FEE
Title of each Class of
Security being Registered
|
|
Amount being
Registered
(1)
|
|
|
Proposed Maximum
Offering Price Per
Security (2)
|
|
|
Proposed Maximum
Aggregate Offering
Price (2)
|
|
|
Amount of
Registration Fee
|
|
Common
Stock, $0.001 par value per share
|
|
|
660,540
|
|
|
$ |
10.39
|
|
|
$ |
6,863,011
|
|
|
$ |
490
|
|
Common
Stock, $0.001 par value per share(3)
|
|
|
1,470,344
|
|
|
$ |
10.39
|
|
|
$ |
15,276,875
|
|
|
$ |
1,089
|
|
Total
|
|
|
2,130,884
|
|
|
|
|
|
|
$ |
22,139,886
|
|
|
$ |
1,579
|
|
(1) Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended, this registration
statement includes an indeterminate number of shares as may become necessary to
adjust the number of shares issued by the Registrant to the Selling Stockholders
upon exercise of the warrants to prevent dilution resulting from stock splits,
stock dividends or similar transactions involving the Common Stock.
(2) Estimated
solely for the purpose of calculating the registration fee in accordance with
Rule 457(c) and 457(g) under the Securities Act of 1933, as amended, based on
the average of the high and low sale prices on August 10, 2010, as reported by
the NASDAQ.
(3)
Represent shares issuable upon the exercise of outstanding warrants to purchase
shares of common stock held by the Selling Stockholders name
herein.
THE
REGISTRANT HEREBY AMENDS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE
NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER
AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES
ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH
DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
Subject to completion, dated August 16,
2010
The information in this prospectus
is not complete and may be changed. These securities may not be sold until
the post-effective amendment to registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities we are not soliciting offers to buy these
securities in any state where the offer or sale is not
permitted.
|
China
MediaExpress Holdings, inc.
660,540 Shares of Common
Stock
1,470,344
Shares of Common Stock Underlying Purchase Warrants
This
prospectus relates to 1,470,344 shares of common stock issuable upon the
exercise of warrants held by certain of our insider stockholders; and 486,067
shares of common stock held by certain of founders of our predecessor TM
Entertainment and Media, Inc. (these securities are referred to as the “Founder
Securities”); and 33,333 shares of common stock held by another selling
stockholder named herein.
This
prospectus also relates to the resale of the following securities issued upon
exercise of the unit purchase option granted to certain representatives in our
initial public offering: 141,140 shares of common stock, par value $0.001 per
share (these securities are referred to as the “UPO Securities”).
In order
to obtain the shares of common stock, the holders of the warrants must pay an
exercise price of $5.50 per share, or by cashless exercise in the case of the
Founder Securities. We will receive any cash proceeds from the
exercise of warrants.
Our
common stock is listed on the NASDAQ Global Select Market under the symbol
“CCME”. On August 11, 2010, the closing sale price of the
common stock was $10.89 per share.
Investing
in our common stock involves a high degree of risk. See “Risk
Factors” included in the 2009 Annual Report incorporated by reference
herein.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date
of this prospectus is _________, 2010
Table
of Contents
PROSPECTUS
SUMMARY
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6
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FORWARD-LOOKING
STATEMENTS
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7
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RISK
FACTORS
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7
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USE
OF PROCEEDS
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7
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DETERMINATION
OF OFFERING PRICE
|
|
PLAN
OF DISTRIBUTION
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10
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
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12
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WHERE
YOU CAN FIND MORE INFORMATION
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4
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LEGAL
MATTERS
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12
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EXPERTS
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12
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ABOUT
THIS PROSPECTUS
You
should rely only on the information contained or incorporated by reference in
this prospectus and in an applicable prospectus supplement, if any, or in any
amendment to this prospectus. We have not authorized any other person to provide
you with different information, and if anyone provides, or has provided, you
with different or inconsistent information, you should not rely on it. We will
not make an offer to sell our common stock in any jurisdiction where the offer
or sale is not permitted. You should assume that the information appearing in
this prospectus as well as the information we filed previously with the SEC and
incorporated herein by reference is accurate only as of the date of the document
containing the information.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information contained in this
prospectus or incorporated by reference. We have not authorized anyone
else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted.
You should not assume that the information in this prospectus is accurate as of
any date other than the date on the front page of this prospectus, regardless of
the time of delivery of this prospectus or any sale of common
stock.
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read, without charge, and copy the documents we
file with the SEC at the SEC’s public reference room at 100 F Street, NE in
Washington, D.C. The
public may obtain information about the operation of the public reference room
by calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains a web site
at http://www.sec.gov which contains the Form S-3 and other reports, proxy and
information statements and information regarding issuers that file
electronically with the SEC.
PROSPECTUS
SUMMARY
The
Company
We were
formed as a blank check company under the name “TM Entertainment and Media,
Inc.” to effect a merger, capital stock exchange, asset acquisition or other
similar business combination with a domestic or foreign operating business in
the entertainment, media, digital or communications industries. 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 changed TM’s corporate name to “China MediaExpress Holdings, Inc.”
More information relating to acquisition and our advertising business in
the People’s Republic of China is contained in our Annual Report on Form 10-K
for the year ended December 31, 2009 (the “2009 Annual Report”), which is
incorporated herein by reference.
Our
principal executive offices are located at Room 2805, Central Plaza, Wan Chai,
Hong Kong . The telephone number at our executive office is +852 2827
6100. Our operating subsidiary maintains an English language website
at www.ccme.tv/en/index.aspx. The information contained on our website is not a
part of, and is not incorporated by reference into, this
prospectus.
The
Offering
Securities
offered:
|
|
2,130,884
shares of common stock, including (i) 486,067 shares of common stock held
by certain of
founders of our predecessor TM Entertainment and Media, Inc., (ii)
1,470,344 shares of common stock issuable upon exercise of warrants held
by the founders of such predecessor; (iii) 70,570 shares
of common stock issued pursuant to the underwriters’ unit purchase option;
and (iv) 70,570 shares
issued upon the exercise of warrants issued pursuant to the underwriters’
unit purchase option; and 33,333 shares of common stock held by another
selling stockholder named
herein.
|
Common
Stock:
|
|
|
Number
outstanding before this offering
|
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33,290,552
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Number
to be outstanding after this offering
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34,760,896
assuming the exercise for cash of all of the warrants.
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Offering
proceeds
|
|
Assuming
the cash exercise of all the warrants, we will receive gross proceeds of
$8,086,892. We intend to use the proceeds from the exercise of
the warrants for working capital, operating expenses and other general
corporate purposes.
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NASDAQ
Symbol
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CCME
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CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
We
believe that some of the information in this prospectus constitutes
forward-looking statements within the definition of the Private Securities
Litigation Reform Act of 1995. However, the safe-harbor provisions of that act
do not apply to statements made in this prospectus. You can identify these
statements by forward-looking words such as "may," "expect," "anticipate,"
"contemplate," "believe," "estimate," "intends," and "continue" or similar
words. You should read statements that contain these words carefully because
they discuss future expectations, contain projections of future results of
operations or financial condition or state other "forward-looking"
information.
We
believe it is important to communicate our expectations to our security holders.
However, there may be events in the future that we are not able to predict
accurately or over which we have no control. The risk factors and cautionary
language discussed in this prospectus provide examples of risks, uncertainties
and events that may cause actual results to differ materially from the
expectations described by us in such forward-looking statements, including among
other things:
|
Ÿ
|
outcomes
of government reviews, inquiries, investigations and related
litigation;
|
|
Ÿ
|
continued
compliance with government regulations;
|
|
Ÿ
|
legislation
or regulatory environments, requirements or changes adversely affecting
the business in which we are engaged;
|
|
Ÿ
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fluctuations
in client demand;
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|
Ÿ
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management
of rapid growth;
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|
Ÿ
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general
economic conditions;
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|
Ÿ
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our
business strategy and plans; and
|
|
Ÿ
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the
results of future financing
efforts.
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You are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of the date of this prospectus.
All
forward-looking statements included herein attributable to us are expressly
qualified in their entirety by the cautionary statements contained or referred
to in this section. Except to the extent required by applicable laws and
regulations, we do not undertake any obligation to update these forward-looking
statements to reflect events or circumstances after the date of this prospectus
or to reflect the occurrence of unanticipated events.
RISK
FACTORS
A
discussion of the risk factors relating to an investment in us is included in
the 2009 Annual Report, which is incorporated herein by reference. You should
carefully consider the risk factors discussed in the 2009 Annual Report,
together with all of the other information included in this prospectus, before
you decide whether to exercise your warrants.
USE
OF PROCEEDS
Assuming
the cash exercise of all the warrants, we will receive gross proceeds of
$8,086,892. We intend to use the proceeds from the exercise of the
warrants for working capital, operating expenses, other general corporate
purposes. If we have indebtedness at the time the warrants are exercised, we may
also use proceeds to repay indebtedness. We may also use the proceeds to acquire
other companies. There is no assurance that the holders of the unit purchase
option or the warrants will elect to exercise any or all of the unit purchase
option or the warrants.
SELLING
STOCKHOLDERS
We are
registering for resale shares of our common stock that are issued and
outstanding, and shares of common stock underlying our warrants held by the
Selling Stockholders identified below. We are registering the shares to permit
the Selling Stockholders and their pledgees, donees, transferees and other
successors-in-interest that receive their shares from a Selling Stockholder as a
gift, partnership distribution or other non-sale related transfer after the date
of this prospectus to resell the shares when and as they deem appropriate in the
manner described in the “Plan of Distribution”. As of August 11, 2010
there were 33,290,452 shares of common stock issued and
outstanding.
The
following table sets forth:
|
|
the
name of the Selling Stockholders,
|
|
|
the
number of shares of our common stock that the Selling Stockholders
beneficially owned prior to the offering for resale of the shares under
this prospectus,
|
|
|
the
maximum number of shares of our common stock that may be offered for
resale for the account of the Selling Stockholders under this prospectus,
and
|
|
|
the
number and percentage of shares of our common stock to be beneficially
owned by the Selling Stockholders after the offering of the shares
(assuming all of the offered shares are sold by the Selling
Stockholders).
|
Except
for Theodore S. Green, Malcolm Bird, Jonathan Miller and John W. Hyde, none of
the Selling Stockholders has been an officer or director of the Company or any
of its predecessors or affiliates within the last three years, nor has any
Selling Stockholder had a material relationship with the Company.
Each
Selling Stockholder may offer for sale all or part of the shares from time to
time. The table below assumes that the Selling Stockholders will sell all of the
shares offered for sale. A Selling Stockholder is under no obligation, however,
to sell any shares pursuant to this prospectus.
Name
of Selling Stockholder
|
Shares
of Common Stock
Beneficially
Owned Prior to Offering (1)
|
Maximum
Number
of Shares of Common Stock to be Sold (2)
|
Number
of
Shares
of Common Stock
Owned
After
Offering
|
Percentage
Ownership
After
Offering
(3)
|
|
|
|
|
|
Theodore
S. Green (3)
|
1,670,344
|
1,670,344
|
-0-
|
-0-
|
Blair Green 2007 GST
Trust
|
22,580
|
22,580
|
-0-
|
-0-
|
Sara Green 2007 GST
Trust
|
22,580
|
22,580
|
-0-
|
-0-
|
Malcolm
Bird
|
201,973
|
201,973
|
-0-
|
-0-
|
John W. Hyde Living
Trust
|
15,035
|
15,035
|
-0-
|
-0-
|
George
Becker
|
10,000
|
10,000
|
-0-
|
-0-
|
Jonathan F.
Miller
|
13,899
|
13,899
|
-0-
|
-0-
|
Maxim Partners
LLC
|
57,648
|
57,648
|
-0-
|
-0-
|
HCFP/Brenner Securities
LLC
|
83,492
|
83,492
|
-0-
|
-0-
|
Eric Gier
|
33,333
|
33,333
|
-0-
|
-0-
|
(1)
|
Beneficial
ownership is determined in accordance with the rules and regulations of
the SEC. In computing the number of shares beneficially owned by a person
and the percentage ownership of that person, securities that are currently
convertible or exercisable into shares of our Common Stock, or convertible
or exercisable into shares of our Common Stock within 60 days of the date
hereof are deemed outstanding. Such shares, however, are not deemed
outstanding for the purposes of computing the percentage ownership of any
other person. Except as indicated in the footnotes to the following table,
each stockholder named in the table has sole voting and investment power
with respect to the shares set forth opposite such stockholder’s name. The
percentage of beneficial ownership is based on 33,290,552 shares
of Common Stock outstanding as of August 11,
2010.
|
(2)
|
Includes
the total number of shares of Common Stock that each Selling Stockholder
intends to sell.
|
(3)
|
Consists
of 1,470,344 shares of common stock underlying Insider Warrants
to purchase up to 1,470,344 shares of our common stock and 200,000 shares
of common stock held by the Selling
Stockholder.
|
PLAN
OF DISTRIBUTION
The
Selling Stockholders and any of their pledgees, donees, transferees, assignees
and successors-in-interest may, from time to time, sell any or all of their
shares of Common Stock on any stock exchange, market or trading facility on
which the Shares are traded or quoted or in private transactions. These sales
may be at fixed prices, at prevailing market prices at the time of sale, at
prices related to the prevailing market price, at varying prices determined at
the time of sale, or at negotiated prices. The Selling Stockholders may use any
one or more of the following methods when selling Shares:
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits Investors;
|
·
|
block
trades in which the broker-dealer will attempt to sell the Shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
·
|
privately
negotiated transactions;
|
·
|
to
cover short sales made after the date that this registration statement is
declared effective by the SEC;
|
·
|
broker-dealers
may agree with the Selling Stockholders to sell a specified number of such
Shares at a stipulated price per
share;
|
·
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise;
|
·
|
a
combination of any such methods of sale;
and
|
·
|
any other method permitted
pursuant to applicable law.
|
The
Selling Stockholders may also sell Shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
In
connection with the sale of the common stock or interests therein, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the Common
Stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of the Common Stock short and deliver these
securities to close out their short positions, or loan or pledge the Common
Stock to broker-dealers that in turn may sell these securities. The Selling
Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of Shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
Selling Stockholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved.
The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the Shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of Common Stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933 amending the list of Selling
Stockholders to include the pledgee, transferee or other successors in interest
as Selling Stockholders under this prospectus.
Upon the
Company being notified in writing by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of Common
Stock through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of Common Stock were sold, (iv) the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
this prospectus, and (vi) other facts material to the transaction. In addition,
upon the Company being notified in writing by a Selling Stockholder that a donee
or pledgee intends to sell more than 500 Shares of Common Stock, a supplement to
this prospectus will be filed if then required in accordance with applicable
securities law.
The
Selling Stockholders also may transfer the shares of Common Stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this
prospectus.
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the Shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
Shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of
Securities will be paid by the Selling Stockholder and/or the purchasers. Each
Selling Stockholder has represented and warranted to the Company that it
acquired the securities subject to this registration statement in the ordinary
course of such Selling Stockholder’s business and, at the time of its purchase
of such securities such Selling Stockholder had no agreements or understandings,
directly or indirectly, with any person to distribute any such
securities.
FINRA
Rule 5110 requires FINRA members firms (unless an exemption applies) to satisfy
the filing requirements of Rule 5110 in connection with the resale, on behalf of
selling shareholders, of the securities on a principal or agency basis. NASD
Notice to Members 88-101 states that in the event a selling shareholder intends
to sell any of the shares registered for resale in this prospectus through a
member of FINRA participating in a distribution of our securities, such member
is responsible for insuring that a timely filing, if required, is first made
with the Corporate Finance Department of FINRA and disclosing to FINRA the
following:
·
|
it
intends to take possession of the registered securities or to facilitate
the transfer of such certificates;
|
·
|
the
complete details of how the selling shareholders’ shares are and will be
held, including location of the particular
accounts;
|
·
|
whether
the member firm or any direct or indirect affiliates thereof have entered
into, will facilitate or otherwise participate in any type of payment
transaction with the selling shareholders, including details regarding any
such transactions; and
|
·
|
in the event any of the
securities offered by the selling shareholders are sold, transferred,
assigned or hypothecated by any selling shareholder in a transaction that
directly or indirectly involves a member firm of the NASD or any
affiliates thereof, that prior to or at the time of said transaction the
member firm will timely file all relevant documents with respect to such
transaction(s) with the Corporate Finance Department of the NASD for
review.
|
No FINRA
member firm may receive compensation in excess of that allowable under FINRA
rules, including Rule 2710, in connection with the resale of the securities by
the selling shareholders, which total compensation may not exceed
8%.
The
Company has advised each Selling Stockholder that it may not use Shares
registered on this registration statement to cover short sales of Common Stock
made prior to the date on which this registration statement shall have been
declared effective by the Commission. If a Selling Stockholder uses this
prospectus for any sale of the Common Stock, it will be subject to the
prospectus delivery requirements of the Securities Act. The Selling Stockholders
will be responsible to comply with the applicable provisions of the Securities
Act and Exchange Act, and the rules and regulations thereunder promulgated,
including, without limitation, Regulation M, as applicable to such Selling
Stockholders in connection with resales of their respective Shares under this
registration statement.
The
Company is required to pay all fees and expenses incident to the registration of
the Shares, but the Company will not receive any proceeds from the sale of the
Common Stock. The Company has agreed to indemnify the Selling Stockholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.
LEGAL
MATTERS
The
validity of the securities offered in this prospectus were passed upon for us by
Morrison Cohen LLP, New York, New York other than the shares offered by Eric
Gier, as to which Loeb & Loeb LLP has provided an opinion regarding the
validity thereof.
EXPERTS
The consolidated financial statements
and the related financial statement schedule of the Company,
its subsidiaries and its variable interest as of December 31, 2009 and for the
year then ended, and the retrospective adjustments to the consolidated financial
statements for the years ended December 31, 2007 and
2008, incorporated in this prospectus by reference from the Company's
Annual Report on Form 10-K for the year ended December 31, 2009 have
been audited by Deloitte Touche Tohmatsu, an independent registered public
accounting firm, as stated in their report, which is incorporated by reference
herein. Such consolidated financial statements and financial statement schedule
have been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and
auditing.
The consolidated financial statements of
CME and its subsidiary and variable interest entity as of December 31, 2008
and for the two years then ended incorporated in this prospectus by reference
from the Company's Annual Report on Form 10-K for the year ended December 31,
2009 have been audited by AJ Robbins, P.C., an independent
registered public accounting firm, as stated in their report, which is
incorporated by reference herein. Such consolidated financial statements have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We
incorporate by reference the filed documents listed below, except as superseded,
supplemented or modified by this prospectus, and any future filings we will make
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 (the “Exchange Act”):
§
|
our
Annual Report on Form 10-K for the fiscal period ended December 31, 2009,
as amended by Form 10-K/A filed on April 30,
2010;
|
§
|
our
Quarterly Reports on Form 10-Q for the fiscal periods ended March 31, 2010
and June 30, 2010;
|
§
|
our
Current Reports on Form 8-K dated January 19, 2010, February 3, 2010,
March 5, 2010 and March 8, 2010;
|
§
|
all
documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this prospectus and prior
to the termination of this offering of
securities
|
Potential
investors may obtain a copy of any of the agreements summarized herein (subject
to certain restrictions because of the confidential nature of the subject
matter) or any of our SEC filings without charge by written or oral request
directed to Jacky Lam, Chief Financial Officer, China MediaExpress Holdings,
Inc., Room 2805, Central Plaza, Wanchai, Hong Kong , Tel. +852 2827
6100
You
should only rely on the information incorporated by reference or provided in
this prospectus or any prospectus supplement. We have not authorized anyone else
to provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front of those documents.
INDEMNIFICATION
Our
certificate of incorporation provides that the Company, to the full extent
permitted by Section 145 of the Delaware General Corporation Law, as amended
from time to time, shall indemnify all persons whom it may indemnify pursuant
thereto. It further provides that expenses (including attorneys’ fees) incurred
by an officer or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding for which such officer or director may
be entitled to indemnification hereunder shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Company as authorized thereby.
Our
bylaws provide the Company with the power to indemnify its officers, directors,
employees and agents or any person serving at the Company’s request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise to the fullest extent permitted by Delaware
law.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the registrant has been informed that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is therefore
unenforceable.
PART
II INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the fees and expenses relating to the
issuance and distribution of the securities being registered hereby, all of
which shall be borne by the registrant. All of such fees and
expenses, except for the SEC Registration Fee, are estimated:
SEC
registration fee
|
|
$
|
1,579
|
|
|
|
|
|
Legal
fees and expenses
|
|
$
|
10,000
|
|
|
|
|
|
Accounting
fees and expenses
|
|
$
|
5,300
|
|
Total
|
|
$
|
16,879
|
|
Item
15. Indemnification of Directors and Officers.
Our
amended and restated certificate of incorporation provides that all directors,
officers, employees and agents of the registrant shall be entitled to be
indemnified by us to the fullest extent permitted by Section 145 of the Delaware
General Corporation Law.
Section
145 of the Delaware General Corporation Law concerning indemnification of
officers, directors, employees and agents is set forth below.
“Section 145. Indemnification of
officers, directors, employees and agents; insurance.
(a) A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person’s conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that the person’s
conduct was unlawful.
(b) A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys’ fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a present or former
director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this section, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection
therewith.
(d) Any indemnification under subsections
(a) and (b) of this section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee or agent is
proper in the circumstances because the person has met the applicable standard
of conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (3) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys’ fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation as authorized in
this section. Such expenses (including attorneys’ fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the corporation deems
appropriate.
(f) The indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of this
section shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such person’s official capacity and as to action in another
capacity while holding such office.
(g) A corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person’s status as such, whether or not the
corporation would have the power to indemnify such person against such liability
under this section.
(h) For purposes of this section, references
to “the corporation” shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect to
the resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references
to “other enterprises” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to “serving at the request of the
corporation” shall include any service as a director, officer, employee or agent
of the corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner “not opposed to the best interests of the corporation” as referred to in
this section.
(j) The indemnification and advancement of
expenses provided by, or granted pursuant to, this section shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(k) The Court of Chancery is hereby vested
with exclusive jurisdiction to hear and determine all actions for advancement of
expenses or indemnification brought under this section or under any bylaw,
agreement, vote of stockholders or disinterested directors, or otherwise. The
Court of Chancery may summarily determine a corporation’s obligation to advance
expenses (including attorneys’ fees).”
Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to our directors,
officers, and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment of expenses incurred or paid by
a director, officer or controlling person in a successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, we will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to the court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such
issue.
Paragraph B of Article Eighth of our
amended and restated certificate of incorporation provides:
“The Corporation, to the full extent
permitted by Section 145 of the GCL, as amended from time to time, shall
indemnify all persons whom it may indemnify pursuant thereto. Expenses
(including attorneys’ fees) incurred by an officer or director in defending any
civil, criminal, administrative, or investigative action, suit or proceeding for
which such officer or director may be entitled to indemnification hereunder
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized hereby.”
Item
16. Exhibits
Exhibit
|
|
|
Number
|
|
Description
of Document
|
4.2
|
|
Specimen
Common Stock Certificate (1)
|
5.1
|
|
Opinion
of Morrissen Cohen LLP as to the legality of the UPO
Securities.(1)
|
5.2
|
|
Opinion
of Morrison Cohen LLP as to the legality of the Founder
Securities.(2)
|
5.3
|
|
Opinion
of Loeb & Loeb LLP as to the legality of the securities offered by
Eric Gier. (3)
|
23.1
|
|
Consent
of Morrison Cohen LLP (included in Exhibits 5.1 and
5.2).
|
23.2
|
|
Consent
of Loeb & Loeb LLP (included in Exhibit 5.3).
|
23.3
|
|
Consent
of Deloitte Touche Tohmatsu, independent registered public accounting
firm.
|
23.4
|
|
Consent
of AJ Robbins PC, independent registered public accounting
firm.
|
24
|
|
Power
of Attorney (4)
|
(1) Incorporated
by reference to the Registration Statement on Form S-1 (File No. 333-143856)
filed with the Securities and Exchange Commission on June 18, 2007, and
subsequently amended on July 27, 2007, September 11, 2007, October 10, 2007 and
October 12, 2007.
(2) Incorporated
by reference to Exhibit 5.2 to the Registration Statement on Form S-3 (File No
333-163748) filed with the Securities and Exchange Commission on December 16,
2009.
(3) Incorporated
by reference to Exhibit 5.3 to the Registration Statement on Form S-3 (File No
333-163748) filed with the Securities and Exchange Commission on December 16,
2009.
(4) Appearing
on the signature pages hereto.
Item
17. Undertakings.
The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933, as amended;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however, that
(A) subparagraphs
(i) and (ii) above do not apply if the registration statement is on Form S-8,
and the information required to be included in a post-effective amendment by
these subparagraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this registration
statement.
(B) subparagraphs
(i), (ii) and (iii) do not apply if the registration statement is on Form S-3 or
Form F-3 and the information required to be included in a post-effective
amendment by these subparagraphs is contained in reports filed with or furnished
to the Commission by the registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
as amended, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, as amended, each filing of the
Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as
amended, may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Hong Kong, Special
Administrative Region of the People’s Republic of China, on the 16th day of
August, 2010.
|
CHINA
MEDIAEXPRESS HOLDINGS, INC.
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/
Zheng Cheng
|
|
|
|
|
|
Zheng
Cheng
|
|
|
|
|
|
Chairman
of the Board and Chief Executive Officer
|
|
|
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Zheng Cheng as his or her true and lawful
attorney-in-fact, with full power of substitution and resubstitution for him or
her and in his or her name, place and stead, in any and all capacities, to sign
any and all amendments including post-effective amendments to this registration
statement, and registration statements filed pursuant to Rule 462 and otherwise,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the SEC, granting unto said attorney-in-fact and
agents the full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the foregoing, as to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact or his substitute, each acting
alone, may lawfully do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
Name
|
|
Position
|
|
Date
|
|
|
|
|
|
/s/
Zheng Cheng
|
|
Chairman
of the Board and Chief Executive Officer (Principal Executive Officer and
|
|
August 16,
2010
|
Zheng
Cheng
|
|
Principal Accounting and Financial Officer) |
|
|
|
|
|
|
|
/s/
Jacky Lam
|
|
Director
and Chief Financial Officer (Principal Financial and Accounting
Officer)
|
|
August 16,
2010
|
Jacky
Lam
|
|
|
|
|
|
|
|
|
|
/s/
George Zhou
|
|
Director
|
|
August 16,
2010
|
George
Zhou
|
|
|
|
|
|
|
|
|
|
/s/
Marco Kung
|
|
Director
|
|
August 16,
2010
|
Marco
Kung
|
|
|
|
|
|
|
|
|
|
/s/
Dorothy Dong
|
|
Director
|
|
August 16,
2010
|
Dorothy
Dong
|
|
|
|
|
|
|
|
|
|
/s/
Yinshaung Huang
|
|
Director
|
|
August 16,
2010
|
Yinshaung
Huang
|
|
|
|
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