As filed with the Securities and Exchange Commission on November 7, 1996
Registration No.333-12889
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
AMENDMENT NO. 1 TO
-------------------------
FORM SB-2
Registration Statement Under
The Securities Act of 1993
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SC&T International, Inc.
(Name of small business issuer in its charter)
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Arizona 3577 86-0737579
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(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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3837 E. LaSalle Street, Phoenix, Arizona 85040; (602) 470-1334
(Address and telephone number of principal executive offices)
JAMES L. COPLAND, PRESIDENT
3837 E. LaSalle Street, Phoenix, Arizona 85040; (602) 470-1334
(Name, address and telephone number of agent for service)
Copies to:
SARA R. ZISKIN, ESQ.
O'CONNOR, CAVANAGH, ANDERSON,
KILLINGSWORTH & BESHEARS, P.A.
One East Camelback Road, Suite 1100
Phoenix, Arizona 85012
Approximate date of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
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. [ ]
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. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434, check
the following box: [ ]
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CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered Proposed maximum aggregate offering price (1) Amount of registration fee
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Common Stock(2)................................... $9,680,924 $3,338.27(3)
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. The conversion price of Series A Preferred Stock is
85% of the average closing price on Nasdaq SmallCap Market for the ten
trading days ended October 23, 1996, which was $0.42.
(2) This Registration Statement covers an additional indeterminate amount of
shares of Common Stock which may be issued in accordance with Rule 416.
(3) $3,338.27 paid previously.
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The Registrant hereby amends this 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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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================================================================================
Exhibit Index is located on page _____. Page 1 of _____ pages.
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INFORMATION HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION
STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE
ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS
PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH
SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS
SUBJECT TO COMPLETION, DATED NOVEMBER 7, 1996
SC&T International, Inc.
17,958,760 Shares of Common Stock
This Prospectus relates to up to 17,958,760 shares of common stock, par
value $0.01 per share (the "Common Stock"), of SC&T International, Inc. (the
"Company") issuable upon conversion of the Company's Series A Preferred Stock
that may be sold from time to time by certain selling shareholders (the "Selling
Shareholders") of the Company. See "Selling Shareholders." At the current
exercise price, subject to a vote of shareholders to increase the Company's
authorized share capital, additional shares may be issued upon conversion of
Series A Preferred Stock. In addition, additional shares may be issued due to
accretion or fluctuation in the price of the Company's Common Stock.
To the extent required by applicable law or Securities and Exchange
Commission regulations, this Prospectus must be delivered upon resale of such
Common Stock by the Selling Shareholders. The Company will not receive any
proceeds from the sale of shares by the Selling Shareholders.
The Company's Common Stock and the stock purchase warrants issued to the
public in connection with the Company's initial public offering (the "IPO
Warrants") are traded on the National Association of Securities Dealers'
Automated Quotation System ("Nasdaq") SmallCap Market under the symbol "SCTI"
and "SCTIW," respectively. On October 23, 1996, the last sale price of the
Common Stock and the IPO Warrants as reported by Nasdaq was $0.34 and $0.09,
respectively.
THE SECURITIES OFFERED HEREBY ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF
RISK. SEE "RISK FACTORS," WHICH BEGINS ON PAGE 5 OF THIS PROSPECTUS, AND
"DILUTION."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Company, pursuant to agreements with certain of the Selling
Shareholders, has agreed to pay substantially all of the expenses of any
offering and sale hereunder (not including commissions and discounts of
underwriters, dealers, or agents), estimated to be $47,000.
The Common Stock will be sold directly, through agents, underwriters, or
dealers as designated from time to time, or through a combination of such
methods on terms to be determined at the time of sale, at market prices
obtainable at the time of sale or otherwise in privately negotiated transactions
at prices determined by negotiation.
The date of this Prospectus is ____________, 1996
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements, and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
and information statements, and other information may be inspected and copied at
the public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
regional offices of the Commission located at 7 World Trade Center, New York,
New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such materials may be obtained from the public reference section of
the Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 upon payment of the prescribed fees. The Commission also maintains a
Web site that contains reports, proxy and information statements, and other
materials that are filed through the Commission's Electronic Data Gathering,
Analysis and Retrieval System. This Web site can be accessed at
http://www.sec.gov.
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PROSPECTUS SUMMARY
The following summary should be read in conjunction with, and is
qualified in its entirety by, the more detailed information and financial
statements and notes thereto appearing elsewhere in this Prospectus. Unless
otherwise indicated, all information in this Prospectus assumes no exercise of
the currently outstanding options and warrants to acquire up to an aggregate of
1,596,335 shares of Common Stock.
The Company
SC&T International, Inc. (the "Company") develops and markets accessory
and peripheral products for the multimedia, interactive, and communications
segments of the personal computer ("PC") and video game industries. The
Company's products include fully integrated, multimedia stereo keyboards, CD-ROM
storage systems, various aftermarket equalizer/amplifier sound enhancement
products, sub-woofer sound systems, PC volume controllers, CD-ROM audio cables,
and a line of PC and video arcade racing wheels for SEGA, Nintendo, Sony
Playstation, and IBM PCs. The majority of the Company's products are compatible
with both IBM PC and Macintosh operating platforms. All new keyboard products
offered by the Company are compatible with the Microsoft Windows 95 platform.
A major factor in the growing market for computer peripheral equipment
is the availability of integrated solutions to adapt existing computers to
perform new functions. The Company focuses on the interactive, multimedia market
and the computer and video game markets, developing technology to furnish
one-step, integrated solutions for the PC user interested in updating existing
equipment. The Company began operations in July 1993. Although the Company's
revenue has increased significantly since inception, the Company recorded a loss
of approximately $792,000 and $2,688,000 for the years ended June 30, 1995 and
June 30, 1996, respectively.
The Company's strategy is to develop new niche products while
continuing to increase sales of existing products. The Company recently entered
into the computer and video game markets with the introduction of a line of PC
and video arcade racing wheels. The Company's initial principal products, its
PLATINUM SOUNDTM multimedia keyboards, were introduced to the market in May
1995. The Company's integrated design eliminates the need for external speakers
and microphones, which otherwise compete for limited desktop space, and offers
the IBM PC user an integrated, single-source solution for audio and
voice-recognition computer applications. In addition, the Company has expanded
its keyboard line to include a standard Windows 95 replacement keyboard and an
ergonomic-styled keyboard with a dual clock calculator enhancement. The Company
is developing enhanced keyboard products, which include a keyboard that will
incorporate an AM/FM stereo radio. The Company also is developing new sound
enhancement product bundles to expand its current line of retail and original
equipment manufacturer ("OEM") products. Furthermore, the Company continues to
focus on reducing the manufacturing cost of its products.
On December 31, 1994, the Company acquired SC&T Europe, N.V., formerly
Westex N.V. ("SC&T Europe"), a marketing company located in Antwerp, Belgium
responsible for sales in Europe. The Company increased revenue through this
acquisition. In August 1996, the Company established wholly owned subsidiaries,
SC&T U.K., Ltd. ("SC&T U.K.") , SC&T America, Inc. ("SC&T America"), and SC&T
Racing Enterprises, Ltd. ("SC&T Racing").
The Company was incorporated in Arizona in June 1993. The Company's
corporate headquarters are located at 3837 E. Lasalle Street, Phoenix, Arizona
85040, and its telephone number is (602) 470-1334.
3
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The Offering
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Securities offered by Selling Shareholders................................ 17,958,760 shares of Common Stock
Common Stock outstanding prior to the conversion
of the Series A Preferred Stock outstanding on
the date of this Prospectus............................................. 5,270,569 shares.
Risk Factors/Dilution..................................................... Investors should carefully consider the factors under
"Risk Factors."
Nasdaq symbols............................................................ Common Stock: SCTI; IPO Warrants: SCTIW.
</TABLE>
Summary Financial Data
The following table summarizes certain selected financial data and is
qualified in its entirety by the more detailed financial statements contained
elsewhere in this Prospectus.
Year Ended June 30,
1995 1996
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Operating Data:
Net sales $3,517,557 3,771,123
Net loss 792,331 2,688,145
Loss per share .21 .58
Average shares outstanding(1) 3,714,542 4,625,086
June 30,
1996
-----------
Balance Sheet Data:
Working capital $10,657,228
-----------
Total assets 12,686,458
Shareholders' equity 11,132,431
-----------
(1) Does not include an aggregate of 1,704,825 additional shares of Common Stock
that may be issued upon exercise of outstanding options and warrants.
PLATINUM SOUND is a trademark of the Company. This Prospectus also refers to
SEGA, Nintendo, Sony Playstation, IBM, Macintosh, Microsoft Windows 95, NMB,
Maxiswitch, Silitek, Altec Lansing, Yamaha, Labtech, Best Data Products, Inc.,
Objix Multimedia Corp., GDT Softworks, Inc., Best Buy Products, Fry's
Electronics, Inc., Babbages, Software, Etc., PC Connections, TigerDirect, Micro
Warehouse, Inc., Dell Computer Corporation, Dell Products Ireland, Dell Products
Malaysia, Computer 2000, Interdiscount, Actebis, Macrotron, Santech, Leader
Distribuzeone, Maxiswitch, Virtual Realty Laboratories Inc., Thrustmaster, and
MadCatz, which are registered or unregistered trademarks of companies other than
SC&T International, Inc., and the SRS symbol , which is a registered trademark
of SRS Labs, Inc.
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RISK FACTORS
The securities offered by this Prospectus are highly speculative, and
the purchase of such securities involves a high degree of risk. In addition to
the other information in this Prospectus, prospective investors should carefully
consider the following factors in evaluating an investment in the securities
offered by this Prospectus.
Limited Operating History
The Company commenced operations in July 1993 as a producer and
marketer of CD-ROM audio cables. In October 1993, the Company began developing
multimedia, accessory, and peripheral computer equipment products, none of which
were introduced into the market until April 1994. In addition, the Company
recently entered the computer and video game markets, with the introduction of a
line of PC and video arcade racing wheels. Accordingly, prospective investors
have limited historical financial information about the Company upon which to
base an evaluation of the Company's performance and an investment in shares of
the Company's Common Stock. In addition, the Company's business will be subject
to many of the problems, expenses, delays, and risks inherent in the
establishment of a new business enterprise, including limited capital, possible
cost overruns, uncertain market acceptance, and the absence of an operating
history. Therefore, there can be no assurance that the Company's business will
be successful or that the Company will be able to achieve or maintain profitable
operations. See "Business."
Weaknesses in Financial Controls
The Company's independent certified public accountants reported to the
Company that, in the course of audit of the Company's financial statements for
the year ended June 30, 1995, they discovered various conditions that they
believed constituted material weaknesses in the financial controls of the
Company but which did not cause them to modify their reports on such financial
statements. These conditions consisted of the following: lack of formal
documentation of operational and accounting policies and procedures; lack of
formal documentation of significant transactions; lack of enforcement of
policies and procedures in place to ensure the timely and accurate recording and
reporting of significant transactions; lack of adequate segregation of duties;
lack of adequate recordkeeping and record retention policies; and inadequate
provision for the physical safeguarding of certain of the Company's assets. The
Company has begun implementation of certain steps it has determined to be
necessary to correct such weaknesses in its financial controls. In this regard,
the Company engaged the Company's independent certified public accountants to
assist in the design, development, and implementation of new policies and
procedures and hired a Vice President of Finance in September 1995 (subsequent
to substantially all of the operations reflected in the Company's financial
statements for fiscal 1995). See "Management's Discussion and Analysis of
Financial Condition and Results of Operations - Weaknesses in Financial
Control."
History of Losses
The Company has incurred operating losses since inception and reported
net losses of approximately $792,000 and $2,688,000 for the years ended June 30,
1995 and June 30, 1996, respectively. As of June 30, 1996, the Company had an
accumulated deficit of approximately $3,963,000. Losses incurred since inception
are attributable primarily to start-up costs incurred in developing the
Company's product line, the costs of introducing new products to market,
inventory adjustments, and costs associated with financing activities prior to
the Company's initial public offering. To date, operating revenue has not been
sufficient to cover these costs. Although the Company had revenue of
approximately $3,771,000 for the year ended June 30, 1996, an increase of
approximately $254,000 over revenue of approximately $3,517,000 for the year
ended June 30, 1995, the Company reported a net loss for the year ended June 30,
1996. There can be no assurance that the Company will generate sufficient
operating revenue, expand sales of its products, or control its costs
sufficiently to achieve or sustain profitability. See "Management's Discussion
and Analysis of Financial Condition and Results of Operations."
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Competition
The Company faces competition from several major competitors that
market multimedia, accessory, and peripheral computer products, and computer and
video game products. Many of these products are marketed by companies that are
well established, have reputations for success in the development and sale of
products, and have significantly greater financial, marketing, distribution,
personnel, and other resources than the Company. See "Risk Factors -
Litigation." The Company expects that direct and indirect competition is likely
to intensify in the future. There can be no assurance that the Company will be
able to compete successfully. See "Business - Competition."
Technological Change and New Products
The PC retail industry in general, and the multimedia and computer and
video game markets in particular, have been characterized by rapid technological
change, frequent introduction of product upgrades, and evolving industry
standards. The Company believes that its future success will depend on its
ability to anticipate such changes and to offer the market responsive products
on a timely basis that meet these evolving industry standards and achieve market
acceptance. There can be no assurance that the Company will have sufficient
resources to develop or otherwise acquire new technology or to introduce new
products that would satisfy an expanded range of customer needs. Additionally,
delays in new product introductions or product enhancements, or the introduction
of unsuccessful products, could adversely affect the Company's operating results
in the future. The Company has experienced certain delays in anticipated
delivery schedules on the introduction of new products. See "Business New
Product - Development."
Dependence on Key Personnel; Need to Attract New Personnel
The loss of the services of James L. Copland, the Company's President,
Treasurer, Chairman of the Board, and Chief Executive Officer, could have a
material adverse effect upon the Company. The Company has entered into a
five-year employment agreement with Mr. Copland. The agreement includes
non-competition and non-solicitation provisions for a 12-month period following
termination of employment. The Company maintains key man life insurance on Mr.
Copland in the amount of $1,000,000. The Company has assigned one-half of the
proceeds of this policy to the estate of the insured. The Company's success also
depends on its ability to identify, recruit, and retain additional experienced
management, engineering, and marketing personnel. There can be no assurance that
the Company will be able to hire or retain necessary personnel. The failure of
the Company to attract and retain personnel with the requisite expertise or to
internally develop personnel with such expertise could adversely affect the
prospects of the Company's success. See "Management - Executive Officers and
Directors," and "Management - Employment Agreements."
Reliance Upon Major Customer
Sales of the Company's product to one customer represented
approximately 22% and 12% of the Company's revenue during the years ended June
30, 1995 and June 30, 1996, respectively. No other customer accounted for more
than 10% of the Company's revenue during these periods. If this customer
discontinues or materially decreases its orders from the Company and the Company
is unable to replace it with new customers, the Company's results of operations
could be materially and adversely affected. See "Business - Marketing."
Dependence on Third-Party Suppliers
The Company historically has purchased keyboards and certain other
components from a single source. In October 1995, this supplier gave notice of
termination of its agreement with the Company and gave notice of certain claims
against the Company. In August 1996, the Company settled its dispute with this
supplier. The Company has identified and placed orders with three alternate
suppliers for its products and component parts. The Company does not have supply
agreements with any of these suppliers. Although the Company has not
6
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experienced any material difficulties in obtaining supplies in the past with the
exception of timely delivery of new products, and the Company believes that
additional suppliers are readily identifiable, any reduction or interruption in
supply from its vendors or suppliers could adversely affect the Company's
ability to supply orders for certain of its products. See "Business - Raw
Materials and Supplies."
Risks Associated with International Sales; Currency Fluctuations
Expenses from foreign operations are not denominated in U.S. dollars.
Expenses denominated in foreign currency accounted for approximately 11% of the
Company's expenses for the year ended June 30, 1995, computed on a pro forma
basis as if the foreign subsidiary were owned by the Company for the entire
period, and 26% of the Company's expenses for the year ended June 30, 1996. The
Company's operations abroad expose the Company to risks such as exposure to
currency fluctuations, exchange rates, tariffs and other barriers, differing
standards requirements, difficulties in staffing and managing international
operations, differing regulatory requirements, potentially adverse tax
consequences, and country-specific product requirements. In addition, the
Company is exposed to gains and losses on international currency transactions.
Currently, the Company does not engage in international currency hedging
transactions. There can be no assurance that these factors will not have an
adverse impact on the Company's future revenue or operating results. See
"Business - Marketing."
Intellectual Property; Patents
The Company's success is dependent, in part, on its proprietary
information, technology, and know-how. The Company relies on a combination of
patents, copyrights, trademarks, trade secrets, and confidentiality agreements
to establish and protect its proprietary rights. Despite these efforts, it may
be possible for competitors or users to copy aspects of the Company's products
or to obtain information that the Company regards as a trade secret. See
"Business - Intellectual Property Rights" and "Business - Legal Proceedings."
Seasonality; Fluctuations in Quarterly Operating Results
As new standards or significant new products are introduced in the
industry, sales may slow significantly while the market reacts to these factors.
Therefore, the Company's revenue may vary significantly from quarter to quarter.
Additional factors that may affect revenue include the timing of customer
orders, changes in the Company's product and customer mix, the introduction of
new products by the Company, pricing pressures, and economic conditions. The
Company also incurs significant development, sales, and marketing expenses in
anticipation of future sales. If demand for the Company's products weakens, or
if orders are not shipped in any quarter as anticipated, the Company's results
of operations for that quarter could be adversely affected. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
Need for Additional Financing; Absence of Financing
The Company completed its initial public offering in December 1995. In
addition, the Company completed a private placement of preferred stock in June
1996. The Company's continued viability will depend upon its ability to generate
cash from operations or obtain additional financing sufficient to meet its
obligations as they become due. Unless the Company can generate cash from
operations sufficient to fund all of its operating needs, the Company will be
required to obtain additional financing. The Company currently is negotiating a
revolving bank line of credit. In addition, the Company's European subsidiary
maintains a small line of credit with a Belgian bank. There can be no assurance
that additional financing, if required, will be available to the Company on
acceptable terms, if at all. Any inability by the Company to obtain additional
required financing may have a material adverse effect on the operations of the
Company.
7
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Litigation
The Company currently is suing a competitor in the keyboard industry
alleging, among other things, misappropriation of trade secrets. The Company
further alleges that the competitor, through its parent company, has infringed
upon the Company's proprietary technology by its introduction of a multimedia
keyboard product. In response, the defendant named the Company in a counterclaim
for defamation. To the extent that this lawsuit requires management time and
other resources, results of operations may be negatively impacted. See "Business
Legal Proceedings."
Control by Principal Shareholder
James L. Copland, President of the Company, currently owns
approximately 33% of the outstanding shares of Common Stock, assuming no
exercise of currently outstanding options or warrants or conversion of currently
outstanding Series A Preferred Stock into shares of Common Stock. Consequently,
Mr. Copland initially may have the power to effectively control the Company. See
"Principal Shareholders."
Possible Issuance of Preferred Stock
The Company is authorized to issue up to 5,000,000 shares of Serial
Preferred Stock, par value $0.01 per share. The Serial Preferred Stock may be
issued in one or more series, the terms of which may be determined at the time
of issuance by the Board of Directors, without further action by the Company's
shareholders, and may include voting rights, preferences as to dividends and
liquidation, conversion and redemption rights, and sinking fund provisions as
determined by the Board of Directors. In June 1996 , the Company issued 1,051
shares of Series A Preferred Stock in a private placement, resulting in proceeds
to the Company of $10,510,000. Although the Company has no present plans to
issue any additional shares of Serial Preferred Stock, the issuance of Serial
Preferred Stock in the future could adversely affect the rights of the holders
of Common Stock and, therefore, reduce the value of the Common Stock. In
particular, specific rights granted to future holders of Serial Preferred Stock
could be used to restrict the Company's ability to merge with or sell its assets
to a third party, thereby preserving control of the Company by the present
owners. See "Description of Securities."
Lack of Dividends
The Company has never paid any cash dividends on its Common Stock and
does not anticipate that it will pay dividends in the foreseeable future.
Instead, the Company intends to apply any earnings to the expansion and
development of its business. See "Dividend Policy."
Change in Control Provisions
The Arizona General Corporation Law contains provisions that may have
the effect of making more difficult or delaying attempts by others to obtain
control of the Company, even when these attempts may be in the best interests of
shareholders. See "Description of Securities - Statutory Provisions Affecting
Persons Who Acquire a Substantial Amount of the Company's Securities."
Limited Liability of Directors
The Company's Amended and Restated Articles of Incorporation eliminate
the personal liability of a director to the Company and its shareholders for
monetary damages for breach of fiduciary duty of care as a director to the
fullest extent allowed by Arizona law, subject to certain exceptions.
Accordingly, except in such circumstances, the Company's directors will not be
liable to the Company or its shareholders for breach of such duty. See
"Management - Limitation of Director's Liability and Indemnification."
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Possible Volatility of Stock Price
The Company's Common Stock and warrants issued to the public in
connection with the Company's initial public offering ("IPO Warrants") have
traded on The Nasdaq Stock Market, Inc. ("Nasdaq") for the SmallCap Market since
December 14, 1995. The trading prices of the Company's Common Stock and IPO
Warrants have been and, in the future , may continue to be subject to wide
fluctuation in response to factors such as technological innovations, new
product developments, general trends in the Company's industry, as well as
quarterly variations in the Company's results of operations and market
conditions in general. During certain periods, the stock markets have
experienced extreme price and volume fluctuations that have particularly
affected the market prices for many small companies and that often have been
unrelated to the operating performance of such companies. These broad market
fluctuations and other factors may adversely affect the market price of the
Company's Common Stock and IPO Warrants.
Maintenance Criteria for Nasdaq Securities; Penny Stock Rules
The Company's Common Stock and IPO Warrants trade on Nasdaq. There is
no assurance that the Company will be able to sustain the maintenance standards
for Nasdaq SmallCap Market listing with respect to the shares of Common Stock in
the future. If the Company's shares of Common Stock fail to maintain Nasdaq's
SmallCap Market listing, the market value of the securities likely would decline
and holders of these securities likely would find it more difficult to dispose
of or to obtain accurate quotations as to the market value of the securities.
In addition, if the Company fails to maintain Nasdaq's SmallCap Market
listing for its securities, and no other exclusion from the definition of a
"penny stock" under the Exchange Act is available, then any broker engaging in a
transaction in the Company's Common Stock would be required to provide any
customer with a risk disclosure document, disclosure of market quotations, if
any, disclosure of the compensation of the broker-dealer and its salesperson in
the transaction, and monthly account statements showing the market value of the
Company's securities held in the customer's accounts. The bid and offer
quotation and compensation information must be provided prior to effecting the
transaction and must be contained on the customer's confirmation. If brokers
become subject to the "penny stock" rules when engaging in transactions in the
Company's securities, they likely would become less willing to engage in such
transactions, thereby making it more difficult for purchasers in this offering
to dispose of their securities.
Rights to Acquire Shares
Future sales of substantial amounts of Common Stock could adversely
affect the prevailing market price of the Company's Common Stock. In June 1996,
the Company issued 1,051 shares of Series A Preferred Stock . The Series A
Preferred Stock is convertible into Common Stock at a conversion rate based upon
the average closing bid price of the Company's Common Stock for the ten trading
days prior to conversion. If all of the outstanding shares of Series A Preferred
Stock had been converted on October 24, 1996 based on 85% of the average closing
bid price of the Common Stock for the ten trading days ended October 23, 1996,
not including accretion through that date, and subject to a vote of shareholders
to increase the Company's authorized share capital, approximately 23,958,333
shares of Common Stock representing approximately 82% of the Common Stock
following conversion, would have been issued as a result of the conversion.
Furthermore, should the trading price of the Common Stock decline from the price
on October 24, 1996 prior to the conversion of all shares of the Series A
Preferred Stock, the number of shares issuable upon conversion will increase
proportionately. See "Description of Securities -Preferred Stock."
A total of 1,010,500 shares of Common Stock have been reserved for
issuance upon exercise of options granted or which may be granted under the
Company's Stock Option Plan. See "Management - Stock Option Plan." Options to
acquire 636,585 shares of Common Stock at an exercise price ranging from $1.00
per share to $5.70 per share currently are outstanding. Stock purchase warrants
to acquire 588,500 shares of Common Stock at an
9
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exercise price of $1.20 per share currently are outstanding. IPO Warrants to
acquire 258,750 shares of Common Stock at an exercise price of $7.00 per share
are currently outstanding. In addition, warrants to acquire 90,000 shares of
Common Stock and 45,000 IPO Warrants were issued to Sovereign Equity Management
Corporation (the "IPO Underwriters") in connection with the Company's initial
public offering. During the terms of such options and stock purchase warrants,
if the market price of the Company's Common Stock exceeds the applicable
exercise price, the holders thereof will have the opportunity to profit from an
increase in the market price of the Common Stock. The existence of such stock
options and stock purchase warrants may adversely affect the terms on which the
Company can obtain additional financing, and the holders of such options and
stock purchase warrants can be expected to exercise such options and stock
purchase warrants at a time when the Company, in all likelihood, would be able
to obtain additional capital by offering shares of its Common Stock on terms
more favorable to the Company than those provided by the exercise of such
options and stock purchase warrants. See "Management Stock Option Plan,"
"Description of Securities - Shares Eligible for Future Sale," and "Description
of Securities - Other Warrants."
Future Sales of Common Stock; Possible Future Sales by Selling Shareholders
This Prospectus forms a part of a Registration Statement that registers
17,958,760 shares of Common Stock for offer and sale by Selling Shareholders,
issuable upon conversion of the Company's Series A Preferred Stock. The Selling
Shareholders may concurrently elect to sell their shares into the public market,
which could have a depressing or overhanging effect on the market price of the
securities offered by this Prospectus. If the trading price of the Company's
Common Stock declines prior to the conversion of all shares of the Series A
Preferred Stock, the number of shares of Common Stock issuable upon conversion
of the Series A Preferred Stock will increase proportionately.
Of the 5,270,569 shares of Common Stock currently outstanding,
3,670,569 will be deemed to be "restricted securities" as that term is defined
in Rule 144 under the Securities Act ("Restricted Shares") and may not be sold
unless the shares to be sold have been registered under the Securities Act or
the sale is made pursuant to an exemption from registration under the Securities
Act, including the exemption provided by Rule 144. Of such shares, 1,756,178 are
available for sale pursuant to Rule 144, subject to the lock-up described below.
An additional 18,000 shares and 25,822 shares will be available for sale
pursuant to Rule 144 in January 1997 and October 1997, respectively. An
additional 1,300,000 shares, 75,000 shares, 87,500, 22,915, 148,230, and 236,924
shares will be available for sale pursuant to Rule 144 in April 1997, May 1997,
September 1997, June 1998, September 1998, and October 1998, respectively. All
officers and directors of the Company (who collectively hold 1,703,692 shares)
have agreed that they will not sell any of their shares, including any shares
acquired by the exercise of any options or warrants, for a period of 18 months
from December 14, 1995, the date of the Company's initial public offering
without the prior written consent of the IPO Underwriters. In addition, 366,822
shares of Common Stock issued upon conversion of 39 shares of Series A Preferred
Stock eligible for resale pursuant to Rule 144 in 1998, and 23,958,333 shares of
Common Stock issuable upon future conversion of 1,012 outstanding shares of
Series A Preferred Stock, have been included in the Registration Statement of
which this Prospectus forms a part and may be sold from time to time pursuant to
such registration. The Company will not receive any of the proceeds from the
sale of shares by the Selling Shareholders. The Company is unable to predict the
effect that sales made under Rule 144 or otherwise may have on the market price
of the Common Stock. However, the possibility that substantial amounts of Common
Stock may be sold in the public market may have an adverse effect on the market
prices for the Company's Common Stock. See "Description of Securities Shares
Eligible for Future Sale."
Forward-Looking Information May Prove Inaccurate
This Prospectus contains various forward-looking statements that are
based on the Company's beliefs as well as assumptions made by and information
currently available to the Company. When used in this Prospectus, the words
"believe," "expect," "anticipate," "estimate," and similar expressions are
intended to identify forward-
10
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looking statements. Such statements are subject to certain risks, uncertainties,
and assumptions, including those identified under "Risk Factors." If one or more
of these risks or uncertainties materialize, or should underlying assumptions
prove incorrect, actual results may vary materially from those anticipated,
estimated or projected. In addition to the other risk factors set forth above,
among the key factors that may have a direct bearing on the Company's results
are competitive practices in the multimedia, interactive, and communications
segments of the PC and video game industries (generally and particularly in the
Company's principal product markets), the ability of the Company to meet
existing financial obligations in the event of adverse industry or economic
conditions or to obtain additional capital to fund future commitments and
expansion, the Company's relationship with employees, and the impact of current
and future laws and governmental regulations affecting the PC and video game
industries and the Company's operations.
DIVIDEND POLICY
The Company has never paid any cash dividends on its capital stock and
does not anticipate paying any cash dividends in the foreseeable future.
Instead, the Company intends to retain any earnings to provide funds for use in
its business.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of
shares of the Common Stock offered hereby for the account of the Selling
Shareholders. See "Selling Shareholders."
PRICE RANGE OF COMMON STOCK
The Company's Common Stock and IPO Warrants have been quoted on the
Nasdaq SmallCap Market under the symbols "SCTI" and "SCTIW," respectively, since
December 14, 1995.
The following table sets forth the quarterly low bid and high ask
prices of the Company's Common Stock for the calendar periods indicated on the
Nasdaq SmallCap Market.
<TABLE>
<CAPTION>
Common Stock
------------
Bid Ask
--- ---
<S> <C> <C>
1995:
Fourth Quarter (from December 14, 1995)................... 6.00 7.75
1996:
First Quarter............................................. 6.50 8.75
Second Quarter............................................ 3.38 8.88
Third Quarter (through October 23, 1996)................ 0.34 4.88
</TABLE>
As of August 14, 1996, there were 50 holders of record and 822
beneficial holders of the Company's Common Stock. On October 23, 1996, the
closing bid price of the Common Stock on the Nasdaq SmallCap Market was $0.34.
11
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Overview
SC&T International, Inc. (the "Company") was formed in June 1993. Since
July 1993, the Company's monthly revenue has grown from approximately $8,000 to
approximately $718,000 in September 1996. On December 31, 1994, the Company
purchased SC&T Europe, a marketing and distribution company located in Antwerp,
Belgium. Revenue from SC&T Europe represented 40% of the Company's consolidated
revenue for the year ended June 30, 1995 and 51% of the Company's consolidated
revenue for the year ended June 30, 1996. SC&T Europe's revenue from products
other than the Company's products represented approximately 22% of the Company's
consolidated revenue for the year ended June 30, 1995 and the year ended June
30, 1996.
Despite the expansion in the number of customers and the corresponding
increase in revenue since commencing operations, the Company's total operating
expenses have exceeded revenue, resulting in net losses of approximately
$792,000 for the year ended June 30, 1995 and approximately $2,688,000 for the
year ended June 30, 1996. The loss recorded for the year ended June 30, 1996
includes an aggregate of approximately $1,300,000, which consists principally of
(i) non-recurring expenses of approximately $300,000, which represent interest
associated with, and amortization of loan acquisition costs due to, the
repayment of debt financing in the amount of $1,875,000; (ii) an adjustment of
$670,000 to inventory, representing the Company's decision to reduce the price
of certain of its products in order to reposition its first generation products
at lower, more aggressive suggested retail prices and to increase the products'
distribution and exposure at the retail outlets; (iii) $165,000 in noncash
payments for consulting services provided by a former sales representative; and
(iv) $114,000 in cost associated with tooling and parts for discontinued
products.
The Company's primary costs are for research and development, tooling
for new products, inventory, trade shows, and selling and promotion activities.
The Company expects these costs to increase in connection with the anticipated
expansion of sales. In addition, operating results may be influenced by factors,
such as the demand for the Company's products, the timing of new product
introductions by both the Company and its competitors, pricing by both the
Company and its competitors, inventory levels, the Company's ability to develop
and market new products, the Company's ability to manufacture its products at
high quality levels and at commercially reasonable costs, the timing and levels
of sales and marketing expenditures, and general economic conditions.
Results of Operations of the Company for the Years Ended June 30, 1996 and 1995
Net Sales
Net sales for the year ended June 30, 1996 were approximately
$3,771,000 or approximately $254,000 greater than net sales for the year ended
June 30, 1995. In addition, the Company had a backlog of orders totaling
approximately $443,000 at June 30, 1996 and $1,642,000 at August 31, 1996. The
Company had no material backlog at June 30, 1995. The increase in net sales
resulted from a variety of factors, including growing acceptance of the
Company's products in the marketplace, limited sales during the Company's
initial months of operation, sales by SC&T Europe subsequent to its acquisition
on December 31, 1994, and expansion of the Company's product lines. Net sales
for the year ended June 30, 1996 were negatively impacted by a delay in the
manufacture and release of new products the Company is bringing to the market.
The products expected for delivery in spring of 1996 were delayed by three to
four months until the first quarter of fiscal 1997. Approximately $537,000 of
the Company's net sales during the year ended June 30, 1996 represents sales by
SC&T Europe of products other than the Company's products.
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<PAGE>
Gross Profit
The Company's gross profit percentage for the year ended June 30, 1996
reflects the Company's decision to reduce the price of certain of its first
generation products remaining in inventory in anticipation of the introduction
of second generation products. The Company's gross profit percentage for the
year ended June 30, 1996, prior to adjustment for this price reduction, was 31%.
However, the Company's gross profit percentage after adjustment for this price
reduction declined from 29% for the year ended June 30, 1995 to 13% for the year
ended June 30, 1996. Gross profit is affected by several factors, including the
mix of sales between the Company's products, which typically sell at gross
profit margins ranging from 25% to 40%. The Company continued to offer reduced
distributor pricing on certain of its products, thereby offering greater
incentive to its customers to increase the exposure and distribution of the
Company's products at retail outlets.
Payroll and Payroll Taxes
The Company's payroll and payroll tax expense increased from
approximately $558,000 in the year ended June 30, 1995 to approximately $732,000
in the year ended June 30, 1996, or approximately 31%. This resulted in an
increase in payroll and payroll tax expense as a percentage of sales from 16%
for the year ended June 30, 1995 to 19% for the year ended June 30, 1996. This
represents an increase in sales and operations personnel. In addition, a
significant portion of the increase in payroll and payroll taxes is a result of
additional employees due to the acquisition of SC&T Europe on December 31, 1994.
Selling and Promotion
The Company's selling and promotion expenses increased from
approximately $413,000 in the year ended June 30, 1995 to approximately $854,000
in the year ended June 30, 1996, or approximately 107%. This represents an
increase in selling and promotion expenses as a percentage of sales from 12% for
the year ended June 30, 1995 to 23% for the year ended June 30, 1996. A portion
of these expenses was utilized to continue promoting new products and creating
new packaging for the Company's PLATINUM SOUND line. In addition, the Company
exhibited its products at several trade shows in the United States and Europe.
Office and Administration
The Company's office and administrative expenses increased from
approximately $465,000 in the year ended June 30, 1995 to approximately $496,000
in the year ended June 30, 1996, or approximately 6%. As a percentage of net
sales, office and administrative expenses remained the same at 13% for the years
ended June 30, 1995 and June 30, 1996.
Research and Development
Expenditures for research and development increased from approximately
$90,000 in the year ended June 30, 1995 to approximately $215,000 in the year
ended June 30, 1996, or approximately 140%. The Company's expenditures for
research and development vary from period to period depending upon the number of
new products under development and the stage of the development and vary as a
percentage of sales depending upon sales achieved in that period.
Development Cost Amortization
Development cost amortization increased from approximately $14,000 for
the year ended June 30, 1995 to approximately $112,000 for the year ended June
30, 1996. Development cost amortization represents amortization of costs
associated with development of new products. Such costs are amortized over a 12-
month period commencing with the first sale of the product.
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<PAGE>
Consulting Fees
Expenditures for consulting fees increased from approximately $39,000
for the year ended June 30, 1995 to approximately $283,000 for the year ended
June 30, 1996. Approximately $165,000 of this increase represents consulting
services provided by a former sales representative who will be compensated by
payment in Common Stock.
Financing Costs - Interest and Amortization
In April, May, and September 1995, the Company completed two private
placements of short-term bridge financing totaling $1,875,000. An aggregate of
162,500 shares of Common Stock were issued in connection with this debt. As a
result, approximately $244,000 was recorded by the Company as loan acquisition
costs, which are amortizable over the life of the debt. In December 1995, the
Company used approximately $1,875,000 of the proceeds of its initial public
offering to repay this debt. Upon repayment, the unamortized amount recorded as
loan acquisition costs was expensed. This amount, together with interest
associated with the short-term bridge financing, resulted in an aggregate
expense of approximately $300,000 during the year ended June 30, 1996. There was
no comparable expense incurred during the year ended June 30, 1995 and there is
no comparable expense anticipated in future reporting periods.
Net Loss
As a result of the factors described above, the Company's loss from
operations increased from approximately $678,000 in the year ended June 30, 1995
to approximately $2,277,000 in the year ended June 30, 1996. The Company's net
loss increased from approximately $792,000 in the year ended June 30, 1995 to
approximately $2,688,000 in the year ended June 30, 1996. The loss of $2,688,000
includes an aggregate of approximately $1,300,000, which consists principally of
(i) $300,000 of non-recurring amortization costs associated with debt that was
retired with proceeds of the Company's initial public offering; (ii)
approximately $670,000 of adjustments relating to the Company's decision to
reduce the price of certain of its first generation products remaining in
inventory in anticipation of the introduction of second generation products to
be released; (iii) $165,000 in noncash payments for consulting services provided
by a former sales representative; and (iv) $114,000 in costs associated with
tooling and parts for discontinued products. The net loss, prior to the
inclusion of the $1,300,000 of adjustments, was approximately $1,388,000 for the
year ended June 30, 1996 as compared to the net loss of approximately $792,000
for the year ended June 30, 1995.
Net Loss Per Share
Net loss per share from operations increased to $0.49 for the year
ended June 30, 1996 from $0.18 for the year ended June 30, 1995. The loss per
share from operations of $0.49 includes a $0.22 per share loss due to
approximately $1,000,000 of the adjustments described above. The effect of these
adjustments were an increase in net loss per share from operations from $0.27
per share to $0.49 per share for the year ended June 30, 1996.
Net loss per share increased to $0.58 for the year ended June 30, 1996
from $0.21 for the year ended June 30, 1995. The loss per share of $0.58
includes the $0.28 per share loss due to approximately $1,300,000 in adjustments
described above. The aggregate effect of these adjustments was an increase in
net loss per share from $.30 per share to $0.58 per share for the period ending
June 30, 1996.
Liquidity and Capital Resources
As a result of the Company's initial public offering in December 1995
and its private placement of Series A Preferred Stock in June 1996, the
Company's working capital improved to approximately $10,684,000 at June 30,
1996. Historically, the Company has experienced a working capital deficiency
primarily due to operating losses
14
<PAGE>
and investment in research and development and has incurred losses since
inception. In addition, the Company is required to pay the costs of stocking
inventory before the Company receives orders and payment from its customers.
Typically, the Company's customers do not pay the Company for its products until
approximately 60 days following delivery and billing. As a result, the receipt
of cash from operations typically lags substantially behind the payment of the
costs for purchase and delivery of the Company's products.
Through July 1996, the Company financed operations by factoring its
United States receivables. Historically, the Company's European subsidiary
financed operations through a line of credit of approximately $168,000,
denominated in Belgian francs. During the year ended June 30, 1996, this line of
credit was increased to approximately $182,000, denominated in Belgium francs.
In addition, to raise funds to meet its expenses, the Company obtained inventory
financing in April and May 1995 of $1,000,000, completed a private placement in
April 1995 of $1,500,000 for 2,000,000 shares of Common Stock, and completed a
private placement in September 1995 of $875,000 of 8% Subordinated Debentures.
An aggregate of 162,500 shares of Common Stock were issued in connection with
the placement of the inventory financing and the 8% Subordinated Debentures. In
December 1995, the Company used approximately $1,875,000 of the proceeds of its
initial public offering to repay the inventory financing and the 8% Subordinated
Debentures. The Company currently is negotiating a revolving line of credit of
$500,000.
Weaknesses in Financial Controls
The Company's independent certified public accountants reported to the
Company that, in the course of the audit of the Company's financial statements
for the year ended June 30, 1995, they discovered various conditions that they
believed constituted material weaknesses in the financial controls of the
Company but which did not cause them to modify their reports on such financial
statements. These conditions consisted of the following: lack of formal
documentation of operational and accounting policies and procedures; lack of
formal documentation of significant transactions; lack of policies and
procedures to ensure the timely and accurate recording and reporting of
significant transactions; lack of adequate segregation of duties; lack of
adequate recordkeeping and record retention policies; and inadequate provisions
for the physical safeguarding of certain of the Company's assets. The Company
has begun implementation of certain steps it has determined to be necessary to
correct such weaknesses in its financial controls. In this regard, the Company
has engaged the Company's independent public accountants to assist in the
design, development, and implementation of new policies and procedures and hired
a Vice President of Finance in September 1995 (subsequent to substantially all
of the operations reflected in the Company's financial statements for fiscal
1995). In addition, the Company has implemented procedures for the retention and
safekeeping of key documents and files, for the timely recording of
transactions, and for the accurate posting and tracking of cash receipts. As
discussed above, the Company engaged its independent certified public
accountants to assist in the design, development, and implementation of new
policies and procedures. This engagement is currently in process and the Company
is working closely with the independent public accountants to address the
deficiencies discussed above.
15
<PAGE>
BUSINESS
General
The Company develops and markets accessory and peripheral products for
the multimedia, interactive, and communications segments of the PC and video
game industries. The Company's products include fully integrated multimedia
stereo keyboards, CD-ROM storage systems, various aftermarket
equalizer/amplifiers, sound enhancement products, sub-woofer sound systems, PC
volume controllers, CD-ROM audio cables, and a line of PC and video arcade
racing wheels for SEGA, Nintendo, Sony Playstation, and IBM PCs.
The Company focuses on the multimedia, interactive, and communications
segments of the industry, developing technology to furnish one-step, integrated
solutions for the PC user interested in updating existing equipment. The Company
began operations in June 1993 and achieved sales of approximately $1,372,000,
$3,517,000 and $3,771,000 during the years ended June 30, 1994, June 30, 1995,
and June 30, 1996, respectively. Although the Company's revenue has increased
significantly since inception, the Company recorded losses of approximately
$792,000 and $2,688,000 for the years ended June 30, 1995 and June 30, 1996,
respectively.
Industry Overview
The market for multimedia applications and equipment is evolving
rapidly and is characterized by rapid technological change. Unlike certain other
segments of the computer market, the multimedia segment is consumer driven. As a
result, many PC manufacturers have redesigned their product mix to dramatically
increase the multimedia portion of their product lines. Some have reconfigured
their product lines so that 100% of their products offer multimedia
capabilities.
BIS Strategic Decisions ("BIS") estimates that the total sales of
multimedia home personal computers in the United States totaled 4.6 million
units in 1995, up 29% from the 3.5 million units sold in 1994. Total growth in
the installed base of home personal computers in the United States in 1995 was
estimated by BIS at 12% or approximately 3.6 million computers. By 2000, BIS
predicts the installed base of home personal computers will be in excess of 50
million units, representing a compounded annual increase of 45% from the
installed base in 1995.
Further growth of the consumer market is expected if multimedia
applications successfully integrate home computing, entertainment, and
communication activities. BIS indicates that home computers accounted for
approximately 26% of the 1995 PC market in the United States, up from
approximately 24% in 1994. The Company believes that consumer demand for
high-powered multimedia computers for the home will fuel projected growth in the
multimedia computer market, resulting in an increase in potential demand for the
Company's products.
Products
Integrated Multimedia Stereo Keyboard Products
The Company currently produces two integrated multimedia stereo
keyboards compatible with all IBM systems, CD-ROM drives, and sound cards. The
PLATINUM SOUND model MSK-200 serves the high end of the market, and the PLATINUM
SOUND model MAK-100 provides a low end, more affordable product. See "Business -
New Product Development."
Both models are teleconferencing ready and feature
magnetically-shielded, four inch, full range, 16 watt stereo speakers, a
built-in, high-density microphone, external microphone and headphone jacks, and
a sliding volume control. In addition, the MSK-200 model features a 13 watt
stereo amplifier, LED readout, an ergonomic wrist rest and sliding controls for
bass, treble, and left-right balance. The suggested retail price for the MSK-200
is $99.95 and for the MAK-100 is $49.95.
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<PAGE>
CD-ROM Storage Systems
The Company offers CD-ROM and 3 1/2" computer diskette storage units.
The units are available in black or white. The CD-ROM storage units hold up to
40 CD-ROM discs and the computer diskette storage units hold up to 40 diskettes.
The suggested retail price for the CD-ROM storage units is $19.95. The suggested
retail price for the computer diskette storage units is $14.95.
Multimedia Equalizer/Amplifier
The Company offers a 100 watt peak performance OmniTM SRS(R) 3D
Surround Sound equalizer/amplifier. This product features volume and balance
controls and 7-band graphic equalization. This product offers high-fidelity
SRS(R) Surround Sound, compatible with IBM and Macintosh PCs as well as with all
computer sound cards. The equalizer/amplifier installs into a 3.5" drive bay or
may be used externally, and has an autoswitch universal power supply that can be
connected to a portable tape or compact disc player. The suggested retail price
for the equalizer/amplifier is $49.95.
Base Sub-Woofer System
The Company offers a 160 watt peak performance sub-woofer satellite
speaker sound system. This product features volume and base controls and is
available for the home stereo and PC markets. The suggested retail price for
this product is $99.95.
Multimedia Volume Controller
The Company markets a volume controller that allows easy access volume
control, eliminating the inconvenience of adjusting volume at the sound card or
with software volume control. The suggested retail price for the volume
controller is $9.99.
CD-ROM Audio Cables
The Company's original product is its universal twin head CD-audio
cable featuring a universal twin head design and shielded cable. The universal
twin head design allows retailers and OEMs to carry a significantly lower amount
of inventory while maintaining the ability to provide cable that is compatible
with any combination of sound card and CD-ROM drive.
Video Arcade Racing Wheels
The Company's newest product, the PER4MERTM Turbo Wheel, is a line of
video arcade racing wheels compatible with SEGA, Nintendo, Sony Playstation, and
IBM PCs. The wheel is an arcade style input device, featuring analog and digital
controls for the Sony Playstation and analog controls for all other platforms.
The wheel plugs directly into the game port connection. The suggested retail
price for this product is $49.95.
Marketing
The Company markets its products internationally to the retail, OEM,
corporate, and video game segments of the market through a combination of direct
sales, a network of independent sales representatives, and its wholly owned
European and United Kingdom marketing subsidiaries. The Company's products
currently are marketed in 12 countries, including the United States, Belgium,
Germany, France, Italy, Switzerland, the United Kingdom, Spain, Canada, and
Russia. For the years ended June 30, 1995 and June 30, 1996, sales in the United
States accounted for approximately 60% and 49%, respectively, of the Company's
consolidated revenue, and sales in Europe accounted for approximately 40% and
51%, respectively, of the Company's consolidated revenue. Sales
17
<PAGE>
by SC&T Europe of products, other than the Company's products, represented
approximately 22% of the Company's consolidated revenue for each of the years
ended June 30, 1995 and June 30, 1996. In February 1996, the Company hired a
Regional Sales Manager to oversee sales by its U.S. independent sales
representatives. The Company has engaged approximately 10 independent sales
representatives in the United States and approximately five in the United
Kingdom and Europe. In the United States, a sales representative is typically
paid a 4% commission and in the United Kingdom and Europe a 10% commission on
sales. The Company has written agreements with its United States independent
sales representatives, but has not entered into written agreements with its
European independent sales representatives. Agreements with independent sales
representatives have a term of one year, with certain cancellation provisions.
The Company expects to renew its agreements as they expire.
Retail outlets and catalogue companies in the United States that carry
the Company's products include Best Buy Products, Fry's Electronics, Inc.,
Babbages, Software, Etc., PC Connections, TigerDirect, and Micro Warehouse, Inc.
The Company's OEM customers include Dell Computer Corporation, Dell Products
Ireland, and Dell Products Malaysia. Typically, the Company's customers carry a
limited number of the Company's products.
During 1996, the Company expanded its retail product line to focus
primarily on products for sale to the retail market at prices under $100. The
Company redirected its focus so that a majority of its product lines retail
under $100. To achieve this product mix, the Company has identified suppliers
able to supply product at lower costs and make design modifications that reduced
manufacturing costs. While the Company believes it will continue to maintain
reduced manufacturing costs, there can be no assurance that the Company will be
successful in its efforts.
During 1996, the Company hired a general manager responsible for sales
and marketing for its European subsidiary. The Company intends to hire a general
manager responsible for sales and marketing for its United Kingdom subsidiary
during fiscal 1997. The Company's current marketing efforts include advertising
in trade and business publications, participation in domestic and international
industry trade shows, and production of product literature and sales support
tools. The Company's products are marketed under the registered trade name
PLATINUM SOUND Multi-Media ProductsTM. Packaging and operating manuals are
produced in five languages, including Spanish, French, German, Italian, and
English.
The Company's European sales are invoiced in U.S. dollars and Belgian
francs. The Company's sales from the United Kingdom will be invoiced in U.S.
dollars and pounds sterling. Expenses of the Company's international operations
are incurred in various foreign currencies, principally pounds sterling and the
Belgian franc. Accordingly, the Company is subject to the risk of fluctuations
in currency exchange rates. To date, the Company has not experienced any
material net gain or loss as a result of foreign currency fluctuations. There
can be no assurance that the Company will not experience material adverse
effects on operations from foreign currency fluctuations in the future. See
"Risk Factors - Risks Associated With International Sales; Currency
Fluctuations."
In addition to sales to retail outlets, the Company currently markets
its CD-ROM audio cables through OEMs. The Company also intends to expand sales
of its products through the OEM and corporate segments of the market. There can
be no assurance that the Company will be successful in this endeavor.
During the years ended June 30, 1995 and June 30, 1996, Dell Computer
Corporation represented approximately 22% and 12%, respectively, of the
Company's revenue. The Company sells in response to purchase orders issued by
Dell Computer Corporation. If Dell Computer Corporation discontinues or
materially decreases its orders from the Company and the Company is unable to
replace it with new customers, the Company's results of operations could be
materially and adversely affected.
In October 1996, SC&T Racing entered into an agreement to sponsor a
formula Atlantic Team in the 1997 Player's Toyota Series races. The Company
intends to use the racing team to promote its products and increase product
brand awareness throughout the 1997 racing season.
18
<PAGE>
New Product Development
The Company currently is developing a new keyboard product, an
ergonomic styled keyboard with a dual clock calculator enhancement, which it
expects to introduce in the second or third quarter of fiscal 1997. The Company
also is developing new sound-enhancement product bundles to expand its current
line of retail and OEM products. There can be no assurance that the Company will
complete development of these products or introduce them on a timely basis.
The Company has entered into a two-phase design and engineering
services agreement with Design Continuum, Inc., a San Francisco-based firm
("DCI"). Under the first phase, DCI designed the Company's next generation of
integrated multimedia and communication keyboard products. Under the second
phase of the agreement, DCI currently is performing mechanical engineering
services required to build the tooling for manufacture of the new products.
During the years ended June 30, 1995 and June 30, 1996, the Company
spent approximately $90,000 and $215,000, respectively, on research and
development. The Company expects to incur approximately $250,000 in research and
development expense in connection with development of new products during fiscal
1997.
Subsidiaries
On December 31, 1994, the Company purchased all of the outstanding
shares of SC&T Europe for 210,000 shares of the Company's Common Stock. This
agreement was renegotiated in June 1996, resulting in the forfeiture of 200,000
shares and the obligation, subject to certain contingencies, to issue 25,000
shares of the Company's Common Stock. SC&T Europe was incorporated in Belgium in
March 1989. SC&T Europe markets the Company's products and distributes other
computer related products throughout Europe. For the years ended June 30, 1995
and June 30, 1996, sales by SC&T Europe accounted for approximately $1,414,000
and $1,905,000, respectively, of the Company's consolidated revenue.
In August 1996, the Company established a wholly owned subsidiary, SC&T
UK, to be responsible for sales in the United Kingdom and Eastern Europe. In
September 1996, the Company established two wholly owned subsidiaries, SC&T
America, which will be responsible for sales in the United States and Canada,
and SC&T Racing, which will be responsible for promoting the Company's name and
products as sponsor of a professional formula racing team.
Competition
The PC retail industry in general and the multimedia and video game
markets in particular are highly competitive. Many of the Company's competitors
have greater financial, technical, marketing, and sales resources than the
Company. The Company's major competitors in the multimedia accessory and
peripheral market are NMB, Maxiswitch, Silitek, Altec Lansing, Yamaha, and
Labtech. The Company's major competitors in the video game market are
Thrustmaster and MadCatz.
Although the Company considers certain of its products to be
proprietary, because the Company manufactures certain of its product lines
through the assembly of component parts that are readily available in the world
marketplace, there are few barriers that would prevent others from designing and
assembling products similar to those sold by the Company.
The Company believes the market for its fully integrated multimedia
stereo keyboards is an emerging market. The Company faces direct competition as
well as indirect competition from various combinations of non-integrated product
solutions for audio and voice-recognition computer applications. If the
Company's products gain
19
<PAGE>
market acceptance and the multimedia market matures , the Company anticipates
that other companies will attempt to develop competing products.
The Company competes primarily on the basis of design, quality,
reliability, and the ease of use of its products. The Company also competes on
value relative to the features offered by its products. Competitive price
reductions , however, may have an adverse effect on the Company's revenue and
profitability. See "Risk Factors -
Competition."
Intellectual Property Rights
The Company's success depends, in part, on its proprietary information,
technology, and know-how. The Company relies on a combination of patents,
copyrights, trademarks, trade secrets, and confidentiality agreements to
establish and protect its proprietary rights. Despite these efforts, it may be
possible for competitors or users to copy aspects of the Company's products or
to obtain information that the Company regards as a trade secret.
The Company has applied for a utility patent for the functional aspects
of its multimedia stereo keyboards in the United States and has filed an
international patent application designating Europe, Japan, Australia, Canada,
Brazil, China, and South Korea. However, there can be no assurance that either
the United States patent or any of the foreign patents will be granted or that
the Company will have sufficient funds to enforce its intellectual property
rights, or that the Company is not infringing on the proprietary rights of
others. In addition, the Company filed an application for registration of the
trademark PLATINUM SOUND and design and has registered certain copyrights in the
United States and in foreign countries.
Although the Company believes that patent, trade secret, and copyright
protection are significant to its competitive position, other factors, such as
the knowledge, ability, and experience of the Company's personnel, the Company's
success at new product development and enhancements, and name recognition are
more significant to its competitive position.
Raw Materials and Supplies
The Company receives and inspects finished products and component parts
at its United States facility. The Company tests a sample of all delivered
products for compliance with specifications.
Although the Company has not experienced any material difficulties in
obtaining supplies in the past, any reduction or interruption in supply could
adversely affect the Company's ability to supply certain of its products. As a
result, the Company maintains a large inventory of its keyboard products. While
this decreases the risk that the Company will be unable to supply its keyboard
products in the event of any reduction or interruption in supply, it increases
that risk associated with obsolescence resulting from technological change.
During the year ended June 30, 1996, the Company wrote down its inventory in the
amount of approximately $670,000, representing the Company's decision to reduce
the price of certain of its first generation products remaining in inventory in
anticipation of the introduction of second generation products to be released.
In addition, the Company has experienced certain delays in anticipated delivery
schedules for the introduction of new products.
Employees
As of October 23, 1996, the Company's United States operation had 12
full-time employees, two of whom were employed in assembly and warehousing, four
in engineering, sales, marketing, and customer support, two in research and
development, and four in administration. In addition, the Company's United
Kingdom and European subsidiaries have six full-time employees, four in sales,
and two in administration.
20
<PAGE>
None of the Company's employees is represented by a labor union in
collective bargaining with the Company. The Company believes its relations with
its employees are good.
Properties
The Company's warehouse and executive offices are located in
approximately 7,700 square feet of leased space in Phoenix, Arizona. The Company
leases this space for approximately $4,900 per month pursuant to a lease
expiring on August 31, 1997. In October 1996, the Company purchased
approximately 1.24 acres of land located at the Scottsdale Airpark in
Scottsdale, Arizona. The Company is negotiating an agreement to build warehouse
facilities and executive offices on this site.
The Company's European subsidiary has relocated to Gent, Belgium. The
Company currently leases approximately 535 square feet of office space for
approximately $1,600 per month, denominated in Belgian francs. The lease expires
on December 31, 1996. In addition, the Company and its European subsidiary lease
offsite storage facilities as needed.
In August 1996, the Company established a wholly owned marketing and
sales subsidiary, SC&T U.K., to be located in northern England. The Company
expects to lease premises for its United Kingdom subsidiary during the third
quarter of fiscal year 1997.
The Company anticipates that its facilities will be sufficient to serve
its needs for the next 12 months. To the extent additional warehousing space is
required, the Company intends to lease off-site, short-term storage facilities.
Legal Proceedings
The Company filed a complaint against a competitor in the keyboard
industry, Maxiswitch, in May 1995 in Pima County Superior Court in Pima County,
Arizona, alleging, among other things, misappropriation of trade secrets. In
response, the defendant named the Company in a counterclaim for defamation. In
October 1995, the Company was granted leave to amend its complaint to further
allege that the competitor, through its Taiwanese parent company, infringed upon
the Company's proprietary technology through the introduction of a multimedia
keyboard product, to allege violations of Arizona's Racketeering Influenced and
Corrupt Practices Act ("RICO"), and to name the Taiwanese parent company as a
second defendant. The Company is seeking damages in an unspecified amount as
well as injunctive relief to enjoin the defendants from further violations of
the Company's proprietary information. The defamation counterclaim seeks
unspecified damages. The Company believes that the counterclaim is without merit
and will vigorously defend the claim. The Company also intends to vigorously
defend its proprietary information. Although the Company does not believe this
proceeding will have a material adverse effect on the Company's operations, a
failure to prevent the defendant from manufacturing and selling this product
could result in increased competition for the Company's products.
In January 1996, Seo Won K-Tec ("SWKT"), a former Korean supplier,
filed a complaint against the Company in the Superior Court of the State of
Arizona in and for the County of Maricopa, alleging that the Company was
obligated to reimburse SWKT for inventory purchased in reliance upon alleged
projections of sales, for unfilled purchase orders issued by the Company, and
for tooling costs. The complaint seeks damages of approximately $1,000,000. In
August 1996, the Company settled this dispute. Under the terms of the
settlement, the Company is required to pay $114,000 to SWKT and SWKT received
certain distribution rights in exchange for royalty payments from SWKT to the
Company.
21
<PAGE>
MANAGEMENT
Directors and Executive Officers
The following table sets forth information concerning each of the
directors and executive officers of the Company:
Name Age Position
- ---- --- --------
James L. Copland 46 President, Treasurer, Chairman of the Board,
and Chief Executive Officer
Catherine Copland 47 Assistant Secretary, Director
Timothy J. Stocker 37 Vice President of Finance, Secretary
Harry G. Wilson 44 Director
Tommie E. Moxley 57 Director
James L. Copland has served as President, Treasurer, and Chairman of
the Board of the Company since its inception. From February until May 1993, Mr.
Copland served as Vice President of Sales and Marketing for North and South
America for Aztech Labs, Inc., a manufacturer and marketer of multimedia sound
cards. From 1990 until 1992, Mr. Copland served as Vice President, Sales of
Bondwell Industrial, Inc., a manufacturer and distributor of notebook computers
and joy sticks. From 1986 until 1989, Mr. Copland served as President for North
American Operations of Laser Friendly, US, and from 1984 until 1986 he served as
Vice President, Sales and Marketing, of Atari (U.S.) Corporation. From 1982
until 1984, Mr. Copland served as General Sales and Marketing Manager of
Commodore Computers, a Canadian company. Mr. Copland is the husband of Catherine
Copland.
Catherine Copland has served as a director of the Company since
December 1994, as Assistant Secretary since April 1995, and as Manager of
Customer Service since January 1995. Prior to this, Mrs. Copland has held
various part-time administrative positions with Sun Life Insurance Company of
Canada, Munich ReInsurance Company of Canada, and Pantek (US) Corp. Mrs. Copland
is the wife of James L. Copland.
Timothy J. Stocker has served as Vice President of Finance of the
Company since September 1995. From 1988 until joining the Company, Mr. Stocker
served as Vice President - Controller of Evans Withycombe Residential, Inc., a
publicly traded REIT, and as Vice President - Controller of Evans Withycombe,
Inc., its predecessor. Prior to joining Evans Withycombe, Mr. Stocker served as
Controller for the Phoenix Division of a large single family home builder and
was responsible for the overall financial reporting of that company. Mr. Stocker
received his Bachelor of Science degree in accounting from the University of
Arizona.
Harry G. Wilson has served as a director of the Company since December
1994. Since 1984, Reverend Wilson has served as President and was the founder of
Extended Hands, Inc., a non-profit organization of 250 volunteers performing
missionary activities and supplying medical services to widows and orphans in
Guatemala and Haiti.
Tommie E. Moxley has served as a director of the Company since November
1995. Since 1979, Mr. Moxley has served as President of Compass Marketing Sales,
Inc. ("Compass"), a manufacturer's representative for high technology
components. Compass has offices located in the Southwestern and Rocky Mountain
regions of the United States. In addition, Mr. Moxley consults with start-up
companies, manufacturer's representatives and distribution companies. Prior to
founding Compass, Mr. Moxley served in various positions in the electronics
industry, including 15 years with TRW Electronics. Mr. Moxley serves on the
Boards of three privately held corporations.
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<PAGE>
At the time of the Company's initial public offering, Mr. Copland and
Mr. Rudi Devers, former President of SC&T Europe, agreed that if the Company
does not record a cumulative net profit, adjusted for costs incurred in
connection with the Company's initial public offering, in the fiscal years
ending June 30, 1996 and June 30, 1997, they will forfeit a total of 500,000
shares of Common Stock, which shares will be returned to the Company's treasury.
Upon Mr. Devers separation from the Company and SC&T Europe, Mr. Devers agreed
to the early forfeiture of his shares and, as a result, 200,000 shares held by
him were returned to the Company's treasury.
Executive Compensation
Summary Compensation Table
The following table sets forth all compensation earned by the Company's
Chief Executive Officer (the ("Named Officer") for services rendered to the
Company during the two preceding fiscal years. No other executive officer of the
Company earned more than $100,000 in the prior fiscal years.
Fiscal Annual
Name and Principal Position Year Compensation
- --------------------------- ------ ------------
James L. Copland 1996 $104,000
President, Treasurer, 1995 $102,000(1)
Chairman of the Board, and
Chief Executive Officer
______________________
(1) A portion of Mr. Copland's compensation set forth in the table above
was accrued and not paid during the period it was earned. Subsequent to
June 30, 1995, the Company issued 15,822 shares of Common Stock to Mr.
Copland as partial payment for accrued but unpaid salary. See "Certain
Transactions."
Commencing September 1, 1995, Mr. Copland's employment agreement with
the Company provides for an annual salary of $104,000. Mr. Copland's employment
agreement also provides for payment to Mr. Copland, in the event of termination
for any reason other than for cause prior to February 28, 1997, of all unpaid
salary under the agreement through February 28, 1997, and for the purchase by
the Company of Mr. Copland's shares of Common Stock or rights to purchase shares
of Common Stock of the Company at their fair market value based on the then
average trading price, less any unpaid exercise price on the date of
termination. The employment agreement also provides for bonuses based upon
performance to be paid to Mr. Copland at the discretion of the Company's Board
of Directors. The Company granted 250,000 options and 50,000 options to Mr.
Copland and Mrs. Copland, respectively, during the fiscal year ended June 30,
1995.
Limitation of Director's Liability and Indemnification
Under Arizona law, the Company is empowered, under certain
circumstances, to indemnify the directors, officers, employees, and agents of
the Company. Section 10-851 of the Arizona Business Corporation Act authorizes
the Company, generally, to indemnify directors, officers, employees, and agents
against expenses and liabilities (including amounts paid in settlement) in
connection with any lawsuit or proceeding involving any such director, officer,
employee, or agent if he or she acted, or failed to act, in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the Company and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful. However, if
the lawsuit is by or in the right of the Company (a shareholders' derivative
suit on behalf of the Company), no director, officer, employee, or agent can be
indemnified against judgments or amounts paid in settlement, and no
indemnification for expenses may be made with respect to any claim, issue, or
matter as to which such director, officer, employee, or
23
<PAGE>
agent shall have been adjudged to be liable to the Company (unless a court
determines that indemnification is appropriate for reasonable expenses
incurred).
Under Arizona law, unless ordered by a court, indemnification pursuant
to the foregoing may only be made by the Company as authorized in a specific
case upon a determination that indemnification is proper under the circumstances
because the director, officer, employee, or agent has met the applicable
standard of conduct. Such determination shall be made generally (i) by the Board
of Directors of the Company, acting by a majority vote of a quorum consisting of
directors who were not parties to the lawsuit or proceeding; (ii) by independent
legal counsel appointed by a majority of the disinterested directors for that
purpose or, if there are no disinterested directors, then as selected by
majority vote of the Board of Directors; or (iii) by the shareholders.
In addition, under Arizona law, the Company is required, unless limited
by its Articles, to (i) indemnify a director or officer of the Company against
reasonable expenses incurred by the officer or director in connection with any
lawsuit or proceeding if such director or officer has been successful on the
merits or otherwise in the defense of such lawsuit or proceedings, and (ii)
indemnify, subject to certain conditions, outside directors, as defined by
Arizona law, against liability and pay an outside director's expenses in advance
of a final disposition of a proceeding. The Company may advance or pay expenses
incurred by a director, officer, employee, or agent in defense of any such
lawsuit or proceeding upon the receipt of (i) a written affirmation from the
director, officer, employee, or agent of such person's good faith belief that he
or she has met the applicable standard of conduct; (ii) an undertaking by or on
behalf of such director, officer, employee, or agent to repay such amount if it
is ultimately determined that he or she is not entitled to be indemnified by the
Company; and (iii) a determination is made that the facts then known would not
preclude indemnification under Arizona law.
Pursuant to Arizona law, the Company's Articles of Incorporation
provide that the Company shall indemnify any person who incurs liability or
expense by such person acting as an officer or director of the Company. Arizona
law does not permit the elimination of liability for (a) the amount of a
financial benefit received by the director to which the director is not
entitled; (b) an intentional infliction of harm on the Company or its
shareholders; (c) certain unlawful distributions to shareholders; and (d) an
intentional violation of criminal law. The effect of this provision in the
Articles of Incorporation is to eliminate the rights of the Company and its
shareholders (through shareholders' derivative suits on behalf of the Company)
to recover monetary damages against a director for breach of fiduciary duty as a
director (including breaches resulting from negligent or grossly negligent
behavior) except in the situations described in clauses (a) through (d) above.
This provision will not alter the liability of directors under federal
securities laws.
The Company's Articles of Incorporation do not permit indemnification
or advancement of expenses with respect to any action, suit, or proceeding
whether civil, criminal, administrative, or investigative ("Proceeding"), or any
claims therein brought or made by him or her against the Company, unless such
Proceeding or claim is approved by the Board of Directors of the Company. The
Company maintains directors' and officers' liability insurance.
Pursuant to the terms of a registration rights agreement between the
Company and each of the Selling Shareholders, the directors and officers of the
Company also are indemnified against certain civil liabilities that they may
incur under the Securities Act in connection with this offering. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to officers, directors, or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act, and is therefore unenforceable.
Stock Option Plan
The Stock Option Plan (the " Plan") provides for the grant of options
to acquire the Company's Common Stock ("Options"). Options under the Plan may be
issued to executives, key employees, and others providing valuable services to
the Company and its subsidiaries. The Options issued may be incentive stock
options or
24
<PAGE>
nonqualified stock options. The Company believes that the Plan represents an
important factor in attracting and retaining executives and other key employees
and constitutes a significant part of the compensation program for employees. A
maximum of 1,010,500 shares of Common Stock of the Company may be issued under
the Plan. If any change is made in the stock subject to the Plan, or subject to
any Option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, split-up, combination of
shares, exchange of shares, change in corporate structure, or otherwise), the
Plan provides that appropriate adjustments will be made as to the maximum number
of shares subject to the Plan and the number of shares and exercise price per
share of stock subject to outstanding options. There are currently outstanding
options to acquire 636,585 shares of the Company's Common Stock under the Stock
Option Plan. These options were granted in February 1995, September 1995, and
August 1996 to 11 individuals and/or entities, including options for 250,000
shares to Mr. Copland, options for 50,000 shares to Mrs. Copland, options for
100,000 shares to Mr. Devers, which have since been cancelled, and options for
50,000 shares to Mr. Stocker, at exercise prices ranging from $1.00 per share to
$5.70 per share. Of these currently outstanding options, 4,500 will vest over a
four-year period from the date of grant; 522,085 will vest over three years from
the date of grant; and 110,000 will vest over a two-year period from the date of
grant.
Eligibility and Administration
Options may be granted only to persons ("Eligible Persons") who at the
time of grant are either (i) key personnel (including officers and directors) of
the Company or subsidiaries of the Company, or (ii) consultants or independent
contractors who provide valuable services to the Company or to subsidiaries of
the Company. Options that are incentive stock options may be granted only to key
personnel of the Company (and its subsidiaries) who are also employees of the
Company (or its subsidiaries).
The Eligible Persons under the Plan are divided into two groups, and
there may be a separate administrator (each, a "Plan Administrator") for each
group. One group consists of Eligible Persons who are executive officers and
directors of the Company and all persons who own 10% or more of the Company's
issued and outstanding stock. The power to administer the Plan with respect to
those persons may be vested either with the Board of Directors or with a
committee ("Senior Committee") comprised of two or more disinterested directors
who are appointed by the Board of Directors. The second group consists of
Eligible Persons who are not executive officers or directors of the Company and
those who do not own 10% or more of the Company's issued and outstanding stock.
The power to administrate the Plan with respect to the second group of Eligible
Persons may be vested with the Board of Directors of the Company or with a
committee appointed by the Board of Directors. Each Plan Administrator will
determine (a) which of the Eligible Persons in its group will be granted Options
and Awards, (b) the amount and timing of the grant of such Options and Awards,
and (c) such other terms and conditions as may be imposed by the Plan
Administrator consistent with the Plan.
To the extent that granted Options are incentive stock options, the
terms and conditions of those Options must be consistent with the qualification
requirements set forth in the Internal Revenue Code of 1986, as amended (the
"Code"). There is no restriction as to the number of Options or Awards that can
be granted to any one employee or as to the maximum number of shares with
respect to which Options or Awards can be granted to any one employee.
Exercise of Options
The expiration date, maximum number of shares purchasable, and the
other provisions of the Options, including vesting provisions, are established
at the time of grant. Options may be granted for terms of up to 10 years and
become exercisable in whole or in one or more installments at such time as may
be determined by the Plan Administrator upon the grant of the Options. The
exercise prices of Options are determined by the Plan Administrator, but may not
be less than 100% (110% if the Option is granted to a shareholder who at the
time the Option is granted owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or of its
subsidiaries) of the fair market value of the Common Stock at the time of the
grant.
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<PAGE>
Options granted under the Plan are nontransferable other than by will
or by the laws of descent and distribution upon the death of the Option holder
and, during the lifetime of the Option holder, are exercisable only by such
Option holder. Termination of employment at any time for cause immediately
terminates all Options held by the terminated employee.
Duration and Modification
The Plan will remain in force until February 6, 2006. The Board of
Directors of the Company at any time may suspend, amend, or terminate the Plan
except that, without the approval by the affirmative vote of the holders of a
majority of the outstanding shares of Common Stock of the Company, the Board of
Directors may not (i) increase, except in the case of certain organic changes to
the Company, the maximum number of shares of Common Stock subject to the Plan,
(ii) reduce the exercise price at which Options may be granted or the exercise
price for which any outstanding Option may be exercised, (iii) extend the term
of the Plan, (iv) change the class of persons eligible to receive Options or
Awards under the Plan, or (v) materially increase the benefits accruing to
participants under the Plan. Notwithstanding the foregoing, the Board of
Directors may amend the Plan from time to time as it deems necessary in order to
meet the requirements of any amendments to Rule 16b-3 promulgated under the
Securities Exchange Act of 1934 without the consent of the shareholders of the
Company.
Plan Not Exclusive
The Plan provides that it is not intended to be the exclusive means by
which the Company may issue options to acquire its Common Stock. To the extent
permitted by applicable law, the Company may issue any options other than
pursuant to the Plan without shareholder approval.
CERTAIN TRANSACTIONS
In connection with the incorporation and initial organization of the
Company and a subsequent purchase of equity securities of the Company in
December 1993, James L. Copland, the Company's President, Treasurer, Chairman of
the Board, and Chief Executive Officer, purchased 1,677,870 shares of Common
Stock in exchange for cash, equipment, and past services. In connection with the
Company's private placement of securities in April 1995, Mr. Copland converted
10 shares of Common Stock into 10 shares of Series A Preferred Stock (the
"Preferred Stock"). The Preferred Stock was identical in all respects to the
Company's Common Stock except that each share of Preferred Stock was entitled to
votes equal to 230,000 shares of Common Stock. The shares of Preferred Stock
were reconverted into 10 shares of Common Stock as of December 14, 1995. An
additional 15,822 shares were issued to Mr. Copland in September 1995 in partial
payment of salary accrued by the Company for past services rendered by Mr.
Copland.
In February 1995, James L. Copland and Catherine Copland were granted
250,000 options and 50,000 options, respectively, under the Company's Stock
Option Plan. In addition, the Company owed Mr. Copland approximately $90,000 at
September 30, 1995, representing accrued but unpaid salary less sums advanced
previously to Mr. Copland. There was no remaining unpaid balance at June 30,
1996.
Until April 1996, the building in which the Company's European office
and warehouse were located was 50% owned by Rudi Devers, then a director and
shareholder of the Company. The Company leased approximately 5,400 square feet
at a rate, denominated in Belgian francs, that translated to approximately
$3,700 per month. The Company believes that the terms of the lease were no less
favorable to the Company than would be the case in a transaction with an
unrelated person.
In April and May 1995, the Company issued and sold $1,000,000 in
principal amount of 6% notes, 75,000 shares of Common Stock, and warrants to
purchase 588,500 shares of Common Stock at a price of $1.20 per share, to
Maraval and Associates, Bauman, Ltd., Robert Adams, Caspian Consulting, Ltd.,
Roddy Diprimo, Ltd., and
26
<PAGE>
Umbiquity Holdings, S.A. The Company retired the $1,000,000 principal amount of
these notes with proceeds from its initial public offering.
In June 1996, the Company entered into an agreement with Rudi Devers,
whereby Mr. Devers resigned as an officer, director, and employee of the Company
and of SC&T Europe. Under the terms of the agreement, Mr. Devers will receive
$29,166. In addition, Mr. Devers is entitled to purchase a vehicle currently
owned by SC&T Europe for $12,000. Mr. Devers forfeited 200,000 shares of Common
Stock in the Company owned by him on the date of the agreement. Mr. Devers also
agreed to nonsolicitation and non-competition arrangements for a period of 24
months from the date of the agreement. Upon compliance with the terms of the
agreement, up to 25,000 shares of Common Stock may be issued to Mr. Devers.
The Company believes that all of the foregoing transactions were on
terms no less favorable to the Company than could have been obtained from
unrelated third parties. The Company intends to continue to require that any
future transactions with affiliated parties be on such terms and approved by a
majority of the disinterested directors.
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<PAGE>
PRINCIPAL SHAREHOLDERS
The following table sets forth certain information with respect to
beneficial ownership of the Common Stock as of October 23, 1996 by (i) each
person known by the Company to be the beneficial owner of more than five percent
of the Common Stock, (ii) each director of the Company, and (iii) all executive
officers and directors of the Company as a group.
<TABLE>
<CAPTION>
Number of Shares
Name and Address Beneficially Owned(1) Percent of Total(1)
---------------- --------------------- -------------------
<S> <C> <C>
James L. and Catherine Copland(2)(24)(25) 1,793,692 33.40%
Harry C. Wilson(2) --- *
Tommie E. Moxley(2) --- *
Thomas J. Vittor Irrevocable Trust of 400,000 7.59%
1995(3)(26)
Banque Scandinave En Suisse(4)(27) 1,775,568 25.20%
Cameron Capital Ltd.(5)(28) 3,551,136 40.25%
Capital Ventures International(6)(29) 2,367,424 31.00%
Cummins Investments Ltd.(7)(30) 710,227 11.88%
GAM Arbitrage Investments, Inc.(8)(31) 473,484 8.24%
Gracechurch & Co.(9)(32) 2,249,053 29.91%
Gundyco in Trust for RRSP 550-98866- 654,783 11.17%
19(10)(33)
KA Investments LDC(11)(34) 473,484 8.24%
Lake Management LDC(12)(35) 710,227 11.88%
Leonardo, L.P.(13)(36) 2,485,795 32.05%
Maslo Fund Ltd.(14)(37) 591,856 10.10%
Raphael, L.P.(15)(38) 355,114 6.31%
RIC Investment Fund Ltd.(16)(39) 946,970 15.23%
The Gifford Fund Ltd.(17)(40) 1,183,712 18.34%
The Matthew Fund N.V.(18)(41) 710,227 11.88%
The Otato Limited Partnership(19)(42) 497,159 8.62%
The Tail Wind Fund Ltd.(20)(43) 828,598 13.59%
West Merchant Bank Nominees Ltd.(21)(44) 591,856 10.10%
Wood Gundy in Trust for RRSP 550- 413,996 7.52%
99119(22)(45)
Wood Gundy London Ltd.(23)(46) 1,183,712 18.34%
</TABLE>
28
<PAGE>
All directors and officers as a group
(five persons)(4) 1,820,358 35.73%
_________________
*Less than 1% of the outstanding Common Stock
(1) The number of shares and percentages shown include the shares of Common
Stock which each named shareholder has the right to acquire within 60
days of October 23, 1996. In calculating percentage ownership, all
shares of Common Stock which the named shareholder has the right to
acquire upon exercise of stock options or conversion of Series A
Preferred Stock are deemed to be outstanding for the purpose of
computing the percentage of Common Stock owned by such shareholder, but
are not deemed to be outstanding for the purpose of computing the
percentage of Common Stock owned by any other shareholder. Percentages
may be rounded. In the event that all of the Series A Preferred Stock
is converted assuming a conversion price of $0.42 per share, the
following shareholders would hold the following percent of the total
number of outstanding shares of the Company. The actual conversion
price may be higher or lower than $0.42.
Banque Scandinave En Suisse 6.07%
Cameron Capital Ltd. 12.15%
Capital Ventures International 8.10%
Cummins Investments Ltd. 2.43%
GAM Arbitrage Investments, Inc. 1.62%
Gracechurch & Co. 7.69%
Gundyco in Trust for
RRSP 550-98866-19 2.24%
KA Investments LDC 1.62%
Lake Management LDC 2.43%
Leonardo, L.P. 8.50%
Maslo Fund Ltd. 2.02%
Raphael, L.P. 1.21%
RIC Investment Fund Ltd. 3.24%
The Gifford Fund Ltd. 4.05%
The Matthew Fund N.V. 2.43%
The Otato Limited Partnership 1.70%
The Tail Wind Fund Ltd. 2.83%
West Merchant Bank Nominees Ltd. 2.02%
Wood Gundy in Trust for
RRSP 550-99119 1.42%
Wood Gundy London Ltd. 4.05%
(2) Each of such persons may be reached through the Company at 3837 E.
LaSalle Street, Phoenix, Arizona 85040.
(3) May be reached at 5 Vermeer Court, Suffern, New York 10901.
(4) May be reached c/o Mr. Sunder Advani, KERNCO Trust SA, 2, rue
Jargonnant, P.O. Box 6432, 1211 - Geneva 6 Switzerland
(5) May be reached c/o Mr. Alan Dunkle, 10 Cavendish Road, Hamilton,
Bermuda HM 19.
(6) May be reached c/o Mr. Johanne Koehne, Oberlindau 7, 60323 Frankfurt Am
Main, Germany.
(7) May be reached c/o Mr. A. Eilenberg, Fitzpatrick, Eilenberg & Zivian,
666 Third Avenue, 30th Floor, New York, New York 10017.
(8) May be reached c/o Mr. Gary Wolf, Angelo, Gordon & Company, 245 Park
Avenue, 26th Floor, New York, New York 10167.
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(9) May be reached c/o Mr. Robert Villiers, IFM Asset Management, 159 New
Bond Street, London, UK W1Y 0RR.
(10) May be reached c/o Mr. Mark Shoom, Yonge Corporate Center, 4120 Yonge
Street, Suite 416, North York, Ontario CANADA M2P2C8.
(11) May be reached c/o Mr. Tom Frei, Kessler Asher Group, 440 S. LaSalle,
Suite 1900, Chicago, IL 60605.
(12) May be reached c/o Lake Management LDC, Field Secretaries (Cayman)
Limited, P.O. Box 705 G.T., Butterfield House, Fort Street, Grand
Cayman, Cayman Islands BWI.
(13) May be reached c/o Mr. Gary Wolf, Angelo, Gordon & Company, 245 Park
Avenue, 26th Floor, New York, NY 10167.
(14) May be reached c/o Fitzpatrick, Eilenberg & Zivian, 666 Third Avenue,
30th Floor, New York, New York 10017.
(15) May be reached c/o Mr. Gary Wolf, Angelo, Gordon & Co., L.P., 245 Park
Avenue, 26th Floor, New York, NY 10167.
(16) May be reached c/o Mr. Fahad Almubarak, P.O. Box 60148, Olaya Street,
Riyadh 11545 Saudi Arabia.
(17) May be reached c/o Mr. Bill Breck, M.I.T., 1711 E. Putnam Road,
Riverside, CT 06878.
(18) May be reached c/o Mr. Neal Emmott, ABN-AMRO Trust Company Ltd.,
Picadilly Centre, 4th Floor, Grand Cayman, B.V.I.
(19) May be reached c/o Mr. Dennis Hunter, Queensgate Bank & Trust, Ugland
House, 5th Floor, So. Church St., Grand Cayman, Cayman Islands.
(20) May be reached c/o Mr. David Crook, 2 Rosemead Road, London, England
W112JG.
(21) May be reached c/o P. Bellami-Smith, 33 Gracechurch Street, London,
EC3V 0AX.
(22) May be reached c/o Mr. Charles Kucoy, 1459 Lakeshore Road E, Oakville,
Ontario, Toronto
Ontario, Canada L6JIMI.
(23) May be reached c/o Mr. Steve Ryder, Cottons Center, Cottons Lane,
London, England SE1 2QA.
(24) Does not include 166,667 shares issuable to Mr. Copland and 33,334
shares issuable to Mrs. Copland upon exercise of options granted under
the Company's Stock Option Plan, but does include 83,333 shares
issuable to Mr. Copland and 16,666 shares issuable to Mrs. Copland upon
exercise of options granted under the Company's Stock Option Plan ,
which are exercisable within 60 days of October 23, 1996. Also does not
include 78,308 shares which have been transferred to Klaus Muerzl, an
employee of the Company, which may revert back to Mr. Copland under
certain conditions, and with regard to which Mr. Copland, and
thereafter the Company, have the right of first refusal should Mr.
Muerzl elect to sell any of the shares.
(25) Does not include 10,000 shares which have been transferred to Timothy
J. Stocker, an officer of the Company, which may revert back to Mr.
Copland under certain conditions and with regard to which Mr. Copland,
and thereafter the Company, have the right of first refusal should Mr.
Stocker elect to sell any of the shares.
(26) Thomas J. Vittor is the father of Glen T. Vittor, President of the IPO
Underwriter.
(27) Includes shares issuable upon the conversion of 75 shares of Series A
Preferred Stock.
(28) Includes shares issuable upon the conversion of 150 shares of Series A
Preferred Stock.
(29) Includes shares issuable upon the conversion of 100 shares of Series A
Preferred Stock.
(30) Includes shares issuable upon the conversion of 30 shares of Series A
Preferred Stock.
(31) Includes shares issuable upon the conversion of 20 shares of Series A
Preferred Stock.
(32) Includes shares issuable upon the conversion of 95 shares of Series A
Preferred Stock.
(33) Includes shares issuable upon the conversion of 25 shares of Series A
Preferred Stock.
(34) Includes shares issuable upon the conversion of 20 shares of Series A
Preferred Stock.
(35) Includes shares issuable upon the conversion of 30 shares of Series A
Preferred Stock.
(36) Includes shares issuable upon the conversion of 105 shares of Series A
Preferred Stock.
(37) Includes shares issuable upon the conversion of 25 shares of Series A
Preferred Stock.
(38) Includes shares issuable upon the conversion of 15 shares of Series A
Preferred Stock.
(39) Includes shares issuable upon the conversion of 40 shares of Series A
Preferred Stock.
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(40) Includes shares issuable upon the conversion of 50 shares of Series A
Preferred Stock.
(41) Includes shares issuable upon the conversion of 30 shares of Series A
Preferred Stock.
(42) Includes shares issuable upon the conversion of 21 shares of Series A
Preferred Stock.
(43) Includes shares issuable upon the conversion of 35 shares of Series A
Preferred Stock.
(44) Includes shares issuable upon the conversion of 25 shares of Series A
Preferred Stock.
(45) Includes shares issuable upon the conversion of 10 shares of Series A
Preferred Stock.
(46) Includes shares issuable upon the conversion of 50 shares of Series A
Preferred Stock.
DESCRIPTION OF SECURITIES
The Company's authorized capital stock consists of 25,000,000 shares of
Common Stock, par value $0.01 per share (the "Common Stock"), and 5,000,000
shares of Serial Preferred Stock, par value $0.01 per share (the "Preferred
Stock"), and 517,500 IPO Warrants entitling the holder thereof to purchase
one-half share of Common Stock for $7.00 per share. Prior to this offering,
there were outstanding 5,270,569 shares of Common Stock and 1,012 shares of
Series A Preferred Stock.
Common Stock
The holders of Common Stock are entitled to one vote for each share on
all matters submitted to a vote of shareholders other than the election of
directors. In elections of directors, Arizona law requires cumulative voting,
which means that each shareholder may cast the number of votes as is equal to
the number of shares held of record, multiplied by the number of directors to be
elected. Each shareholder may cast the whole number of votes for one candidate
or distribute such votes among two or more candidates. Subject to preferences
that may be applicable to any then outstanding Preferred Stock, the holders of
Common Stock will be entitled to receive such dividends, if any, as may be
declared by the Board of Directors from time to time out of legally available
funds. Upon liquidation, dissolution, or winding up of the Company, the holders
of Common Stock will be entitled to share ratably in all assets of the Company
that are legally available for distribution, after payment of all debts and
other liabilities and subject to the prior rights of holders of any Preferred
Stock then outstanding. The holders of Common Stock have no preemptive,
subscription, redemption, or conversion rights. The rights, preferences, and
privileges of holders of Common Stock will be subject to the rights of the
holders of shares of any series of Preferred Stock that the Company may issue in
the future.
Redeemable Common Stock Purchase Warrants
The Company issued 517,500 IPO Warrants in connection with its initial
public offering. In addition, a Warrant was issued to the IPO Underwriter to
purchase 45,000 IPO Warrants. The IPO Warrants are subject to the terms and
conditions of a Warrant Agreement between the Company and American Securities
Transfer, Inc., as Warrant Agent. The following description of the IPO Warrants
is not complete and is qualified in all respects by the Warrant Agreement, which
was filed as an exhibit to the Company's Registration Statement Number 33-
96812-LA filed in connection with the Company's initial public offering. The
shares of the Company's Common Stock underlying the IPO Warrants, when issued
upon exercise thereof and payment of the purchase price, will be fully paid and
nonassessable.
Each IPO Warrant entitles the holder to purchase one-half share of
Common Stock at any time during the three years commencing December 15, 1995 for
$7.00 per share. The number and kind of securities or other property for which
the IPO Warrants are exercisable are subject to adjustments in certain events,
such as mergers, reorganizations, or stock splits, to prevent dilution. The IPO
Warrants will be redeemable by the Company at a price of $.05 per IPO Warrant
upon 30 days notice if the closing bid price of the Company's Common Stock (as
quoted on the principal exchange on which the Company's Common Stock is then
traded) equals or exceeds $8.00 per share for a period of 20 consecutive trading
days. All IPO Warrants not exercised or redeemed will expire three
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years from the date of this Prospectus, unless the exercise date is extended by
the Company in its discretion. Holders of IPO Warrants will not, as such, have
any of the rights of shareholders of the Company.
The IPO Warrants may be exercised by filling out and signing the
appropriate form on the IPO Warrants and mailing or delivering the IPO Warrants
to the Warrant Agent in time to reach the Warrant Agent by the expiration or any
redemption date, accompanied by payment in full of the exercise price for the
IPO Warrants being exercised in United States funds (in cash or by check or bank
draft payable to the order of the Company). Common Stock certificates will be
issued as soon as practicable after exercise and payment of the exercise price
as described above.
The Underwriter's Warrants
In connection with the Company's initial public offering, the Company
sold warrants to the IPO Underwriter, at a purchase price of $.001 per warrant
(the "Underwriter's Warrants"), to purchase from the Company 90,000 shares of
Common Stock and 45,000 IPO Warrants. The Underwriter's Warrants are exercisable
for a period of four years commencing one year from December 15, 1995 at a per
share exercise price (the "Exercise Price") equal to $6.25 per share of Common
Stock and $.125 per IPO Warrant. The Underwriter's Warrants may not be sold,
transferred, assigned, or hypothecated for a period of one year from the
effective date of the offering except to officers of the IPO Underwriter. The
Underwriter's Warrants contain anti-dilution provisions for adjustment of the
Exercise Price upon the occurrence of certain events, including stock dividends,
stock splits, and recapitalizations. The holders of Underwriter's Warrants have
no voting, dividend, or other right as shareholders of the Company with respect
to shares underlying the Underwriter's Warrants, unless and until the
Underwriter's Warrants have been exercised.
Other Warrants
In connection with the Company's private placement of $1,000,000 in
principal amount of unsecured notes for inventory financing, the Company issued
warrants to purchase an aggregate of 588,500 shares of Common Stock. The
warrants are exercisable at $1.20 per share and vest over a three-year period.
The warrants expire in September 1998.
In connection with the Company's private placement of 1,051 shares of
Series A Preferred Stock the Company issued warrants to purchase an aggregate of
108,490 shares of Common Stock. The warrants are exercisable immediately at
$7.75 per share. The warrants expire on June 17, 2001.
Preferred Stock
The Company is authorized to issue up to 5,000,000 shares of Serial
Preferred Stock, par value $0.01 per share. At the date of this Prospectus, the
Company has 1,012 shares of Series A Preferred Stock outstanding. Subsequent to
the conversion of the outstanding shares of Series A Preferred Stock, the
Company will have no class of Preferred Stock issued or outstanding.
The Board of Directors is authorized, subject to any limitations
prescribed by the laws of the State of Arizona, but without further action by
the Company's shareholders, to provide for the issuance of Preferred Stock in
one or more series, to establish from time to time the number of shares to be
included in each such series, to fix the designations, powers, preferences, and
rights of the shares of each such series and any qualifications, limitations, or
restrictions thereof, and to increase or decrease the number of shares of any
such series (but not below the number of shares of such series then outstanding)
without any further vote or action by the shareholders.
The Board of Directors may authorize and issue Preferred Stock with
voting or conversion rights that could adversely affect the voting power or
other rights of the holders of Common Stock. In addition, the issuance of
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Preferred Stock may have the effect of delaying, deferring, or preventing a
change in control of the Company. The Company has no current plan to issue any
shares of Preferred Stock.
Series A Preferred Stock
In June 1996, the Company issued Series A Preferred Stock. The
following description of the Series A Preferred Stock is not complete and is
qualified in all respects by the Certificate of Designation that is filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
Liquidation Rights. In the event of any liquidation, dissolution, or
winding up of the Company, either voluntary or involuntary ("an Event"), the
holders of Series A Preferred Shares shall be entitled to receive, immediately
after any distributions to senior securities and prior and in preference to any
distribution to junior securities but in parity with any distribution to parity
securities, an amount per share equal to the sum of (i) $10,000 for each
outstanding Share (the "Original Series A Issue Price"), and (ii) an amount
equal to 8% of the Original Series A Issue Price per annum for the period that
has passed since the date of issuance of any Series A Preferred Stock (such
amount being referred to herein as the "Accretion"). If upon the occurrence of
such Event and after any distributions to senior securities, the assets and
funds thus distributed among the holders of the Series A Preferred Stock and
parity securities shall be insufficient to permit the payment of such holders of
the full preferential amounts due to the holders of the Series A Preferred Stock
and the parity securities, respectively, then the entire remaining assets and
funds of the Company legally available for distribution shall be distributed
among the holders of the Series A Preferred Stock and the parity securities, pro
rata, based on the respective liquidation amounts to which each such series of
stock is entitled by the Company's Articles of Incorporation and the Certificate
of Designation. Upon the completion of this distribution, if assets remain in
the Company, they shall be distributed to holders of junior securities in
accordance with the Company's Articles of Incorporation including any duly
adopted Certificate(s) of Designation. A consolidation or merger of the Company
with or into any other corporation or corporations, or a sale, conveyance or
disposition of all or substantially all of the assets of the Company or the
effectuation by the Company of a transaction or series of related transactions
in which more than 50% of the voting power of the Company is disposed of, shall
not be deemed to be a liquidation, dissolution, or winding up.
Voting Rights. The holders of the Series A Preferred Stock have no
voting rights, except as otherwise required by Arizona statute.
Optional Conversion. The record holder of the Series A Preferred Stock
shall be entitled, subject to the Company's right of redemption and the
restrictions on conversion, to convert the shares held by such holder into that
number of fully paid and nonassessable shares of Common Stock at the Conversion
Rate as set forth below. The minimum number of shares of Series A Preferred
Stock that may be converted is the lesser of (i) two shares, or (ii) all of the
holder's remaining shares. The number of shares of Common Stock to be issued
upon conversion of one share of Series A Preferred Stock is computed as follows:
(8%)(N/365)(10,000) + 10,000
----------------------------
Conversion Price
where
N = the number of days between (i) the date that, in connection with the
consummation of the initial purchase of the Series A Preferred Stock from the
Company, the escrow agent first had in its possession funds representing full
payment for the Series A Preferred Stock for which conversion is being elected,
and (ii) the Date of Conversion;
Conversion Price = the lesser of (x) $7.75, or (y) 85% of the average Closing
Bid Price, as that term is defined below, of the Company's Common Stock for the
10 trading days immediately preceding the Date of Conversion. For purposes
hereof, the term "Closing Bid Price" shall mean the closing bid price of the
Company's Common
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Stock as reported by Nasdaq (or, if not report by Nasdaq, as reported by such
other exchange or market where traded).
Restrictions on Conversion. No shares of Series A Preferred Stock may
be converted prior to August 20, 1996. Thereafter, each holder of Series A
Preferred Stock was permitted to convert one-third of such shares on or after
August 20, 1996, an additional one-third on or after September 19, 1996, and all
additional remaining shares on or after October 19, 1996. All conversions are
also subject to the Company's right of redemption, as described below.
Automatic Conversion. The shares shall automatically be converted into
Common Stock (in accordance with the conversion price provisions above) on June
21, 1999.
Redemption at Option of Company. In the event the Conversion Price of
the Company's Common Stock is less than $7.75, the Company shall have the right,
in its sole discretion, upon receipt of a Notice of Conversion, to redeem in
whole or in part any Series A Preferred Stock submitted for conversion. If the
Company elects to redeem some, but not all, of the Series A Preferred Stock
submitted for conversion, the Company shall redeem from among the Series A
Convertible Preferred Stock submitted for conversion on the applicable date, a
pro-rata amount from each shareholder submitting Series A Preferred Stock for
conversion. The redemption price shall equal the sum of the Conversion Price.
At any time after June 22, 1997, the Company has the right to redeem
the Series A Preferred Stock in increments of $1.5 million by giving 30 business
days written notice of its intention to do so. The redemption price per share of
Series A Preferred Stock shall be as follows:
130% of Stated Value 12 months and 1 day - 18 months
125% of Stated Value 18 months and 1 day - 24 months
120% of Stated Value 24 months and 1 day - 30 months
115% of Stated Value 30 months and 1 day - 36 months
"Stated Value" shall equal $10,000 plus 8% of $10,000 per annum for the
period that has passed since the date that the escrow agent first had possession
of funds representing full payment for the redeemed shares.
Statutory Provisions Affecting Persons Who Acquire a Substantial Amount of the
Company's Securities
Upon completion of this offering, the Arizona Corporate Takeover Act
(Arizona Revised Statues Sections 10-1201 et seq.) will apply to the Company.
The Arizona Corporate Takeover Act includes certain protections for corporations
to ward off or prevent unfriendly corporate takeover attempts by third parties.
The Arizona Corporate Takeover Act is comprised of three articles: Article 1,
which deals with, among other things, greenmail; Article 2, which deals with
voting rights of Acquiring Persons (as defined below); and Article 3, which
deals with Business Combinations (as defined below). Each one of these articles
is discussed in more detail below. Arizona corporations may "opt out" of the
provisions of Articles 2 and/or 3 of the Arizona Corporate Takeover Act by
amending their articles of incorporation or bylaws to state that they will not
be governed by Articles 2 and/or 3 of the Arizona Corporate Takeover Act.
The Company is presently subject to Articles 1, 2, and 3 of the Arizona
Corporate Takeover Act.
Greenmail
The Arizona Corporate Takeover Act prohibits the Company from
purchasing any shares of capital stock from any beneficial owner of more than 5%
of the voting power of the Company (the "5% Owner") at a per share price in
excess of the "average market price" (during the 30 trading days prior to the
purchase), unless the 5%
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Owner beneficially owned his or her shares for three years or more or unless the
purchase is approved by the Company's shareholders (excluding the 5% Owner).
Shareholder approval is not required for such purchases if the offer is made
available on the same terms to all holders of shares of capital stock.
Voting Rights
Under the Arizona Corporate Takeover Act, within 10 days after a
Control Share Acquisition (as defined below), an Acquiring Person is required to
deliver to the Company an information statement containing, among other things,
his or her identity, the number of shares beneficially owned or proposed to be
acquired by the Acquiring Person, the terms of the Control Share Acquisition and
the Acquiring Person's plans for the Company, such as a merger of the Company,
the liquidation of the Company, a change of location of its principal executive
office, a change in management, or a change in the business activity to be
conducted by the Company.
The shares acquired by the Acquiring Person will be entitled to the
same voting rights as shares held by other persons only with respect to
elections of directors. Unless the Company's shareholders approve greater voting
rights, the shares acquired by the Acquiring Person in excess of the percentage
contained in the definition of Control Share Acquisition below will not be
entitled to voting rights on any other matters (until such time as they are
transferred to a person that is not an Acquiring Person).
Provided that the Acquiring Person has entered into a definitive
financing agreement pursuant to which the Acquiring Person will obtain the
necessary third-party funds to finance the Control Share Acquisition and has
delivered a copy thereof to the Company, the Acquiring Person may require the
Company to call a special meeting of the Company's shareholders for the purpose
of considering the voting rights to be accorded to the shares acquired by the
Acquiring Person. Alternatively, this matter may be determined at the next
special or annual meeting of the Company's shareholders. The affirmative vote of
the holders of a majority of the voting power of all shares, excluding shares
owned by the Acquiring Person and by the Company's directors and officers, will
be required with respect to this issue.
The Company may redeem the shares acquired by the Acquiring Person at a
price equal to their fair market value if the Acquiring Person has not delivered
an information statement to the Company within the required time period or if
the Company's shareholders have voted not to accord the Acquiring Person's
acquired shares voting rights.
A "Control Share Acquisition" is defined generally as an acquisition
(direct or indirect) by a person of beneficial ownership of shares of the
Company that would, when added to other shares of the Company beneficially owned
by such person, entitle such person, immediately after the acquisition, to
exercise or direct the exercise of a new range of voting power, such ranges
being (a) at least 20%, but less than 33 1/3%; (b) at least 33 1/3%, but less
than or equal to 50%; and (c) more than 50%. Certain exceptions from these
requirements are specified by law. An acquisition of shares from the Company
would not constitute a Control Share Acquisition.
An "Acquiring Person" is defined generally as a person that makes or
proposes to make a Control Share Acquisition, together with such person's
affiliates and associates. If any persons are acting together or in concert for
such purpose, each such person constitutes an Acquiring Person.
Business Combinations
Under the Arizona Corporate Takeover Act, the Company may not engage in
any Business Combination, or authorize any subsidiary to engage in any Business
Combination, with an Interested Shareholder (as defined below) or any affiliate
or associate of an Interested Shareholder for a period of three years after the
date that the Interested Shareholder first acquired the shares of Common Stock
that qualify him or her as an Interested Shareholder, unless either the Business
Combination or the Interested Shareholder's acquisition of shares is approved
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by a committee of the Company's Board of Directors before the Interested
Shareholder first acquired the shares that qualify him or her as an Interested
Shareholder. Certain exceptions from these requirements are specified by law.
The committee making such determination must be comprised of disinterested
directors or other persons, excluding expressly the Interested Shareholder and
officers and employees of the Company.
In addition, the Company may not engage in any Business Combination, or
authorize any subsidiary to engage in any Business Combination, with an
Interested Shareholder or any affiliate or associate of an Interested
Shareholder after such three-year period unless the Business Combination is
approved by the Company's shareholders (excluding the Interested Person) at a
meeting called after such three-year period or unless the Business Combination
satisfies each of certain statutory requirements (including, among other things,
(a) the per share consideration to be received by all shareholders is at least
equal to the greater of, generally, the price paid by the Interested Shareholder
to purchase his or her shares (plus interest), the market value of the shares on
the date that the Interested Shareholder acquired his or her stock (plus
interest) and the market value of the shares on the date of the announcement of
the Business Combination (plus interest), and (b) except under certain
circumstances, the Interested Shareholder has not acquired any additional shares
during such three-year period).
A "Business Combination" is defined generally as (a) a merger,
consolidation, or share exchange between the Company and an Interested
Shareholder or a corporation or other entity that, as a result of such
transaction, would become an Interested Shareholder; (b) a sale, lease, or other
disposition (in one transaction or a series of transactions) to or with an
Interested Shareholder of the Company's assets, provided that the assets have an
aggregate market value equal to 10% or more of the aggregate market value of the
Company's assets or of the aggregate market value of the Company's outstanding
stock or the assets represent 10% or more of the Company's revenues or net
income; (c) the issuance or transfer to an Interested Shareholder of shares of
the Company's (or a subsidiary's) stock (in one transaction or a series of
transactions) that have an aggregate market value equal to 5% or more of the
aggregate market value of the Company's outstanding stock; (d) the adoption of
any plan or proposal for the liquidation or dissolution of the Company, or any
reincorporation of the Company in another state, proposed by or pursuant to an
agreement with an Interested Shareholder; (e) any reclassification of securities
(including stock dividends and stock splits) or other distribution of shares
with respect to shares of the Company's capital stock, recapitalization of the
Company, merger or other transaction, whether or not involving an Interested
Shareholder, that has the direct or indirect effect of increasing the
proportionate share of the outstanding shares of the Company that is owned,
directly or indirectly, by the Interested Shareholder; or (f) any receipt by an
Interested Shareholder (other than on a proportionate basis as a shareholder of
the Company) of the direct or indirect benefit of any loan or other financial
assistance or tax advantage provided by or through the Company.
An "Interested Shareholder" is defined generally as any person (other
than the Company and its subsidiaries) that either (a) beneficially owns 10% or
more of the voting power of the outstanding shares of the Company, or (b) is an
affiliate or associate of the Company and who, at any time within the three-year
period preceding the transaction, was the beneficial owner of 10% or more of the
voting power of the outstanding shares of the Company, together with such
person's affiliate and associates.
Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is American
Securities Transfer, Inc., Denver Colorado.
Shares Eligible For Future Sale
Of the 5,270,569 shares of Common Stock currently outstanding,
3,670,569 shares will be deemed to be "restricted securities" as that term is
defined in Rule 144 promulgated under the Securities Act, in that such shares
were sold by the Company in private transactions not involving a public
offering.
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Generally, under Rule 144 as currently in effect, subject to the
satisfaction of certain other conditions, a person, including an affiliate of
the Company, after at least two years have elapsed from the sale by the Company
of the restricted securities, may sell, within any three-month period, a number
of shares of restricted securities that does not exceed the greater of 1% of the
total number of outstanding shares of the same class, or, if the Common Stock is
quoted on Nasdaq or a stock exchange, the average weekly trading volume during
the four calendar weeks preceding the sale. After a period of three years has
elapsed from the date of sale of the restricted securities by the Company, any
person who has not been an affiliate of the Company for at least three months is
entitled to sell such restricted shares under Rule 144 without regard to any of
the above limitations.
Of the outstanding shares of Common Stock, 1,756,178 are available for
sale in the public market pursuant to Rule 144, subject to certain restrictions.
The Company, its affiliates, executive officers, and directors have agreed not
to sell or assign, or transfer any of their shares of Common Stock, including
any shares acquired by the exercise of options or warrants, until December 15,
1996, without the IPO Underwriter's prior written consent.
In addition, 366,822 shares of Common Stock, which were converted from
Series A Preferred Stock sold in an overseas offering prior to the date of this
Prospectus, and such additional shares as may be issued upon future conversions
of Series A Preferred Stock, have been included in the Registration Statement of
which this Prospectus forms a part. The Company is unable to predict the effect
that sales made under Rule 144 or otherwise may have on the market price of the
Common Stock. However, the possibility that substantial amounts of Common Stock
may be sold in the public market may have an adverse effect on the market prices
for the Company's Common Stock.
The IPO Underwriter has been granted warrants to purchase 90,000 shares
of Common Stock and 45,000 Warrants.
PLAN OF DISTRIBUTION
The Common Stock offered hereby may be sold by the Selling Shareholders
or by pledgees, donees, transferees, or other successors-in-interest (including
sales after exercise of conversion privileges ). Such sales may be made in the
over-the-counter market through the Nasdaq Stock Market, in privately negotiated
transactions, or otherwise, at prices and at terms then prevailing, at prices
related to the then current market prices or at negotiated prices. The Common
Stock may be sold by one or more of the following methods: (a) a block trade in
which the broker or dealer so engaged will attempt to sell the stock as agent
but may position and resell a portion of the block as principal in order to
consummate the transaction; (b) a purchase by a broker or dealer as principal,
and the resale by such broker or dealer for its account pursuant to this
Prospectus, including resale to another broker or dealer; or (c) ordinary
brokerage transactions and transactions in which the broker solicits purchasers.
In effecting sales, brokers or dealers engaged by a Selling Shareholder may
arrange for other brokers or dealers to participate. Any such brokers or dealers
will receive commissions or discounts from a Selling Shareholder in amounts to
be negotiated immediately prior to the sale. Such brokers or dealers and any
other participating brokers or dealers may be deemed to be "underwriters" within
the meaning of the Securities Act of 1933, as amended. Any gain realized by such
a broker or dealer on the sale of shares that it purchases as a principal may be
deemed to be compensation to the broker or dealer in addition to any commission
paid to the broker by a Selling Shareholder.
The securities covered by this Prospectus in the future also may be
sold under Rule 144 instead of under this Prospectus. Rule 144 provides an
exemption from registration for the resale of securities by persons other than
the issuer after the securities have been held by persons for at least two years
from original issuance, and such securities are sold in strict compliance with
Rule 144 "manner of sale" requirements and maximum number of shares
requirements. The Company will not receive any portion of the proceeds of the
securities sold by the Selling Shareholders, but will receive amounts upon
exercise of Warrants, which funds will be used for working capital.
37
<PAGE>
There is no assurance that warrantholders will exercise any or all of the
Warrants or that the Selling Shareholders will sell any or all of the shares
offered hereby.
The Selling Shareholders have been advised by the Company that during
the term each is engaged in distribution of the securities covered by this
Prospectus, each must comply with Rules 10b-5 and 10b-6 under the Securities
Exchange Act of 1934, as amended, and pursuant thereto (i) each must not engage
in any stabilization activity in connection with the Company's securities; (ii)
each must furnish each broker through which securities covered by this
Prospectus may be offered the number of copies of this Prospectus which are
required by each broker; and (iii) each must not bid for or purchase any
securities of the Company or attempt to induce any person to purchase any of the
Company's securities other than as permitted under the Securities Exchange of
1934, as amended. Any Selling Shareholders who may be "affiliated purchasers" of
the Company as defined in Rule 10b-6, have been further advised that pursuant to
Securities Exchange Act Release 34-23611 (September 11, 1986), they must
coordinate their sales under this Prospectus with each other and the Company for
purposes of Rule 10b-6. The Company has agreed to indemnify certain selling
shareholders and other selling shareholders against certain liabilities,
including certain liabilities under the Securities Act , and, to the extent any
indemnification by an indemnifying party is prohibited or limited by law, the
Company has agreed to make the maximum contribution with respect to extent
permitted by law.
SELLING SHAREHOLDERS
Based upon the conversion rate of Series A Preferred Stock at October
23, 1996, and subject to adjustment for changes in the conversion rate and for
accretion, up to 23,958,333 shares of Common Stock may be issued upon conversion
of the outstanding Series A Preferred Stock. As a result of the recent decline
in the price of the Company's stock, the number of shares of Common Stock
issuable upon conversion of the Company's Series A Preferred Stock exceeds the
number of authorized and available shares of the Company's Common Stock.
Therefore, until the Company's shareholders vote to increase the Company's
authorized share capital up to 17,591,938 shares of Common Stock may be offered
for sale under this Prospectus by 26 Selling Shareholders who acquired or may
acquire such shares upon conversion of shares of Series A Preferred Stock
acquired in the Company's June 1996 private placement of Series A Preferred
Stock.
The following table sets forth certain information with respect to
holders for whom the Company is registering these shares for resale to the
public. None of the Selling Shareholders has held any position or office or has
had a material relationship with the Company or any of its affiliates within the
past three years. Except as set forth below, the Company believes that none of
the holders listed below owns any other equity securities of the Company. The
Company will not receive any of the proceeds from the sale of these shares by
the Selling Shareholders.
<TABLE>
<CAPTION>
Number of
Number of Shares
Shares Beneficially
Beneficially Number of Shares Owned After the
Name Owned(1) Being Sold(1)(2) Offering
- ---- ------------ ---------------- ---------------
<S> <C> <C> <C>
AG Super Fund International 192,894 192,894 0
Partners L.P.(1)(3)
Banque Scandinave En Suisse(1)(4) 1,446,706 1,446,706 0
Cameron Capital Ltd.(1)(5) 2,893,411 2,893,411 0
Carousel Investments, Inc.(1)(6) 156,253 156,253 0
Cummins Investments Ltd.(1)(7) 578,682 578,682 0
</TABLE>
38
<PAGE>
<TABLE>
<CAPTION>
Number of
Number of Shares
Shares Beneficially
Beneficially Number of Shares Owned After the
Name Owned(1) Being Sold(1)(2) Offering
- ---- ------------ ---------------- ---------------
<S> <C> <C> <C>
Darissco Diversified Investments 189,478 189,478 0
Inc.(1)(8)
GAM Arbitrage Investments, 385,788 385,788 0
Inc.(1)(9)
Gracechurch & Co.(1)(10) 1,832,494 1,832,494 0
Gundyco in Trust for RRSP 550- 545,162 545,162 0
98866-19(1)(11)
KA Investments LDC(1)(12) 385,788 385,788 0
Lake Management LDC(1)(13) 578,682 578,682 0
Leib Stein(1)(14) 192,894 192,894 0
Leonardo, L.P.(1)(15) 2,025,388 2,025,388 0
Maslo Fund Ltd.(1)(16) 482,235 482,235 0
Raphael, L.P.(1)(17) 289,341 289,341 0
RIC Investment Fund Ltd.(1)(18) 771,577 771,577 0
Star High Yield Investment 192,894 192,894 0
Management(1)(19)
The Gifford Fund Ltd.(1)(20) 964,470 964,470 0
The Matthew Fund N.V.(1)(21) 578,682 578,682 0
The Otato Limited Partnership(1)(22) 405,078 405,078 0
The Tail Wind Fund Ltd.(1)(23) 675,129 675,129 0
Trustees (IFM Pension Plan 192,894 192,894 0
Ltd.)(1)(24)
West Merchant Bank Nominees 482,235 482,235 0
Ltd.(1)(25)
Windward Island Limited(1)(26) 185,987 185,987 0
Wood Gundy in Trust for RRSP 550 370,148 370,148 0
99119(1)(27)
Wood Gundy London Ltd.(1)(28) 964,470 964,470 0
------------ ---------- -----------
Total 17,958,760 17,958,760 0
============ ========== ===========
</TABLE>
39
<PAGE>
(1) Represents shares issuable upon the conversion of shares of Series A
Preferred Stock assuming a conversion price of $0.42, without giving
effect to the issuance of shares as a result of any accretion. The
actual conversion price may be higher or lower than $0.42, and the
amount of accretion will vary, depending upon the period over which
Series A Preferred Stock is outstanding. Thus, the number of shares
actually issued pursuant to the conversion of shares of Series A
Preferred Stock for any one Selling Stockholder may be higher or lower
than the number set forth in the table. See "Description of Capital
Stock - Series A Preferred Stock."
(2) The Company is paying all costs associated with registration.
(3) Includes shares issuable upon the conversion of 10 shares of Series A
Preferred Stock.
(4) Includes shares issuable upon the conversion of 75 shares of Series A
Preferred Stock.
(5) Includes shares issuable upon the conversion of 150 shares of Series A
Preferred Stock.
(6) Includes shares issuable upon the conversion of 7 shares of Series A
Preferred Stock.
(7) Includes shares issuable upon the conversion of 30 shares of Series A
Preferred Stock.
(8) Includes shares issuable upon the conversion of 5 shares of Series A
Preferred Stock.
(9) Includes shares issuable upon the conversion of 20 shares of Series A
Preferred Stock.
(10) Includes shares issuable upon the conversion of 95 shares of Series A
Preferred Stock.
(11) Includes shares issuable upon the conversion of 25 shares of Series A
Preferred Stock.
(12) Includes shares issuable upon the conversion of 20 shares of Series A
Preferred Stock.
(13) Includes shares issuable upon the conversion of 30 shares of Series A
Preferred Stock.
(14) Includes shares issuable upon the conversion of 10 shares of Series A
Preferred Stock.
(15) Includes shares issuable upon the conversion of 105 shares of Series A
Preferred Stock.
(16) Includes shares issuable upon the conversion of 25 shares of Series A
Preferred Stock.
(17) Includes shares issuable upon the conversion of 15 shares of Series A
Preferred Stock.
(18) Includes shares issuable upon the conversion of 40 shares of Series A
Preferred Stock.
(19) Includes shares issuable upon the conversion of 10 shares of Series A
Preferred Stock.
(20) Includes shares issuable upon the conversion of 50 shares of Series A
Preferred Stock.
(21) Includes shares issuable upon the conversion of 30 shares of Series A
Preferred Stock.
(22) Includes shares issuable upon the conversion of 21 shares of Series A
Preferred Stock.
(23) Includes shares issuable upon the conversion of 35 shares of Series A
Preferred Stock.
(24) Includes shares issuable upon the conversion of 10 shares of Series A
Preferred Stock.
(25) Includes shares issuable upon the conversion of 25 shares of Series A
Preferred Stock.
(26) Includes shares issuable upon the conversion of 9 shares of Series A
Preferred Stock.
(27) Includes shares issuable upon the conversion of 10 shares of Series A
Preferred Stock.
(28) Includes shares issuable upon the conversion of 50 shares of Series A
Preferred Stock.
This Registration Statement also covers additional shares of Common
Stock that become issuable in connection with the shares registered for sale
hereby by reason of any stock dividend, stock split, recapitalization, or other
similar transaction effected without the receipt of consideration which results
in an increase in the number of the Company's outstanding shares of Common
Stock.
On June 17, 1996, the Company entered into Subscription Agreements with
each of the Selling Stockholders who participated in the Private Placement
pursuant to which such persons purchased an aggregate of 1,051 shares of Series
A Preferred Stock. Each person that purchased Preferred Stock pursuant to a
Subscription Agreement represented to the Company that such person would acquire
the shares for investment and with no present intention of distributing any of
such shares except pursuant to this Prospectus. Pursuant to the Subscription
Agreements, the Company agreed to file, and has filed, with the Commission,
under the Act, a Registration Statement on Form SB-2, of which this Prospectus
forms a part, with respect to the resale of the shares and agreed to use its
best efforts to keep such Registration Statement effective until such date as
all of the shares have been resold, or such time as all of the shares held by
the Selling Stockholders can be sold immediately without compliance with the
registration statement of the Securities Act pursuant to Rule 144.
40
<PAGE>
In May 1996, the Company engaged Swartz Investments LLC to advise the
Company in connection with the structure, terms, and conditions of a preferred
stock offering and to introduce the Company to potential investors. In
consideration for their services, Swartz Investments was paid a placement fee of
$630,600 plus a non-accountable expense allowance of $210,200 for its expenses,
including legal expenses, in connection with the offering and also issued to
persons affiliated with Swartz Investments warrants to purchase 108,490 shares
of Common Stock. Such warrants are exercisable for a term of five years at $7.75
per share of Common Stock. The Company has also agreed to indemnify Swartz
Investments against certain liabilities, including liabilities under the
Securities Act.
In connection with the offering made hereby, the Company and the
Selling Stockholders have entered into an agreement that contains certain
indemnity and contribution provisions between the Company and such Selling
Stockholders against certain liabilities, including liabilities arising under
the Securities Act.
LEGAL OPINIONS
The legality of the shares of Common Stock offered hereby will be
passed upon for the Company by O'Connor, Cavanagh, Anderson, Killingsworth &
Beshears, a Professional Association, Phoenix, Arizona.
EXPERTS
The financial statements of SC&T International, Inc. included in this
Prospectus and the Registration Statement have been audited by Toback CPAs,
P.C., independent certified public accountants, to the extent and for the
periods indicated in their reports appearing elsewhere herein and are included
in reliance upon such reports given upon the authority of said firm as experts
in auditing and accounting.
41
<PAGE>
SC&T INTERNATIONAL, INC.
------------------------
AND SUBSIDIARY
--------------
Page
Part I Financial Information
Item 1 Financial Information
Independent Auditor's Report F - 2
Consolidated Balance Sheet as of
June 30, 1996 F - 3
Consolidated Statements of Operations for the Years
Ended June 30, 1996 and June 30, 1995 F - 5
Consolidated Statements of Shareholders' Equity for the
Years Ended June 30, 1996 and June 30, 1995 F - 6
Consolidated Statements of Cash Flows for the Years
Ended June 30, 1996 and June 30, 1995 F - 7
Notes to Consolidated Financial Statements F - 9
F-1
<PAGE>
Board of Directors and Shareholders
SC&T International, Inc.
Phoenix, Arizona
INDEPENDENT AUDITOR'S REPORT
----------------------------
We have audited the accompanying consolidated balance sheet of
SC&T International, Inc. and Subsidiary as of June 30, 1996, and the related
consolidated statements of operations, shareholders' equity and cash flows for
each of the two years in the period ended June 30, 1996. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the consolidated financial statements referred to
above present fairly, in all material respects, the financial position of SC&T
International, Inc. and Subsidiary as of June 30, 1996, and the results of their
operations and their cash flows for each of the two years in the period ended
June 30, 1996, in conformity with generally accepted accounting principles.
Toback CPAs, P.C.
Phoenix, Arizona
August 20, 1996
F-2
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
CONSOLIDATED BALANCE SHEET
June 30, 1996
ASSETS
<TABLE>
<S> <C>
Current assets
Cash, including $49,123 of restricted cash $ 9,962,511
Receivables (Note 2): 740,454
Inventory (Notes 3 and 8) 1,432,081
Other current assets 74,943
-----------------
Total current assets 12,209,989
Product development costs, less accumulated amortization of $7,173 210,008
Property and equipment, net (Note 4) 229,685
Other assets 36,776
-----------------
$ 12,686,458
=================
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
CONSOLIDATED BALANCE SHEET
June 30, 1996
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt (Note 5) $ 5,556
Notes payable, bank (Note 6) 78,528
Notes payable, bank (Note 6) 78,528
Accounts payable 1,093,811
Accounts payable 1,066,650
Accrued expenses 253,498
Advances from factor (Note 2) 121,368
-----------
Total current liabilities 1,552,761
-----------
Long-term debt, less current portion (Note 5) 1,266
-----------
Commitments and contingencies (Note 8)
Shareholders' equity:
Common stock, $0.01 par; authorized 25,000,000 shares;
5,085,415 issued and 4,885,415 outstanding (Note 10) 50,854
Series A preferred stock, $0.01 par, authorized 5,000,000
shares, issued and outstanding 1,051 (Note 11) 11
Additional paid-in capital 15,097,557
Treasury stock - at cost, 200,000 shares (Note 9) (29,415)
Currency translation (23,271)
Accumulated deficit (3,963,305)
-----------
Total shareholders' equity 11,132,431
-----------
$12,686,458
===========
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Years Ended June 30, 1996 and 1995
1996 1995
----------- -----------
Net sales $ 3,771,123 $ 3,517,557
Cost of goods sold:
Cost of goods sold 2,619,048 2,422,784
Inventory adjustment to carrying value (Note 3) 669,579 105,000
----------- -----------
3,288,627 2,527,784
----------- -----------
Gross profit 482,496 989,773
Selling, general and administrative expenses:
Payroll and payroll taxes 731,832 558,431
Selling and promotion 854,046 412,473
Office and administrative 495,889 464,549
Research and development 215,256 89,549
Development cost amortization 111,755 14,308
Consulting fees 282,706 39,000
Other 67,957 89,940
----------- -----------
2,759,441 1,668,250
----------- -----------
Loss from operations (2,276,945) (678,477)
Other income (expense):
Interest income 36,484 --
Interest expense (147,539) (113,854)
----------- -----------
Loss before income tax & financing costs (2,388,000) (792,331)
Interest associated with short-term
bridge financing (56,011) --
Write off of loan acquisition costs resulting from
repayment of debt (244,134) --
Income tax expense (Note 7) -- --
----------- -----------
Net loss $(2,688,145) $ (792,331)
=========== ===========
Net loss from operations per common share $ (0.49) $ (0.18)
=========== ===========
Net loss per common share $ (0.58) $ (0.21)
=========== ===========
Weighted average common shares outstanding 4,625,086 3,714,542
=========== ===========
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
For the Years Ended June 30, 1996 and 1995
<TABLE>
<CAPTION>
Common Stock Preferred Stock Additional
------------------------- -------------------------- paid-in
Shares Amount Shares Amount capital
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Balance at July 1, 1994 1,766,178 $ 17,662 10 $ -- $ 14,256
Purchase of subsidiary (Notes 10 and 12) 210,000 2,100 94,163
Issuance of additional stock (Note 10) 2,083,000 20,830 1,574,170
Net loss
----------- ----------- ----------- ----------- -----------
Balance at June 30, 1995 4,059,178 $ 40,592 10 $ -- $ 1,682,589
Stock Issuance:
Issuance of additional stock (Note 10) 1,003,322 10,033 (10) -- 3,759,870
Issuance of preferred stock (Note 11) 1,051 11 9,620,955
Exercise of options (Note 14) 22,915 229 34,143
Forfeiture of common stock (Note 9)
Currency translation
Net loss
----------- ----------- ----------- ----------- -----------
Balance at June 30, 1996 5,085,415 $ 50,854 1,051 $ 11 $15,097,557
=========== =========== =========== =========== ===========
</TABLE>
<TABLE>
<CAPTION>
Treasury Stock
-------------------------- Currency Accumulated
Shares Amount translation deficit
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Balance at July 1, 1994 -- $ -- $ -- $ (482,829)
Purchase of subsidiary (Notes 10 and 12)
Issuance of additional stock (Note 10)
Net loss (792,331)
----------- ----------- ----------- -----------
Balance at June 30, 1995 -- $ -- $ -- $(1,275,160)
Stock Issuance:
Issuance of additional stock (Note 10)
Issuance of preferred stock (Note 11)
Exercise of options (Note 14)
Forfeiture of common stock (Note 9) (200,000) (29,415)
Currency translation (23,271)
Net loss (2,688,145)
----------- ----------- ----------- -----------
Balance at June 30, 1996 (200,000) $ (29,415) $ (23,271) $(3,963,305)
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended June 30, 1996 and 1995
<TABLE>
<CAPTION>
1996 1995
------------ ------------
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (2,688,145) $ (792,331)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization 192,269 66,543
Loan amortization 244,134 10,715
(Increase) decrease in accounts receivable 377,483 (89,967)
Increase (decrease) in allowance for doubtful accounts (107,000) 68,000
Increase in inventories (172,311) (704,759)
(Increase) decrease in advances on purchases of
inventory 44,102 (231,495)
Increase in other current assets (55,264) (13,796)
(Increase) decrease in other assets 32,345 (23,210)
Increase (decrease) in accounts payable 352,423 (570,416)
Increase in accrued expenses 39,088 25,757
------------ ------------
Net cash used in operating activities (1,740,876) (2,254,989)
------------ ------------
Cash flows from investing activities:
Purchase of property and equipment (105,347) (102,759)
Development costs (225,328) (110,742)
Loans to related parties (16,673) (6,519)
------------ ------------
Net cash used in investing activities (347,348) (220,020)
------------ ------------
Cash flows from financing activities:
Currency translation (23,271) --
Repayment on bank overdraft -- (14,393)
Net repayments under line of credit agreement (129,788) --
Repayments on notes payable, bank -- (57,534)
Principal payments on debentures (875,000) --
Principal payments on long-term debt (19,172) (10,668)
Proceeds from long-term debt -- 13,647
Net repayments on related party loans (1,000,000) --
Proceeds from note payable, related party -- 1,000,000
Proceeds from stock issuance - common stock 4,601,154 1,520,000
Proceeds from stock issuance - preferred stock 10,510,000 --
Cost of stock issuance - common stock (884,629) --
Cost of stock issuance - preferred stock (889,034) --
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-7
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended June 30, 1996 and 1995
1996 1995
----------- ----------
Cash flows from financing activities, continued:
Loan fees associated with debentures $ (92,349) $ --
Proceeds from sale of debentures 875,000 --
Advances from (repayments to) factor (311,883) 313,664
----------- ----------
Net cash provided by financing activities 11,761,028 2,764,716
----------- ----------
Net increase in cash 9,672,804 289,707
Cash, beginning of period 289,707 --
----------- ----------
Cash, end of period $ 9,962,511 $ 289,707
=========== ==========
Supplemental Disclosure of Cash Flow Information
1996 1995
--------- ----------
Interest paid $ 203,550 $ 113,854
Taxes paid -- --
Supplemental Information of Noncash Investing and Financing Activities
Effective January 1, 1995, the Company acquired 100% of a corporation's stock
(See Note 12) whose operating assets and liabilities, based on the purchase
document, were as follows:
Cash $ -
Accounts receivable 518,996
Inventory 133,644
Property and equipment 73,905
Prepaid expenses and other 276,268
Accounts payable (560,513)
Accrued expense (57,172)
Long-term debt (288,865)
------------
Net $ 96,263
============
On May 31, 1995, the Company issued 75,000 shares of common stock to obtain
inventory financing (See Note 10).
On September 12, 1995, the Company issued 87,500 shares of Common Stock
associated with short-term bridge financing raised with a private placement of
8% Subordinated Debentures (See Note 10).
In June of 1996, 200,000 shares were forfeited to the Company by the former
General Director of SC&T Europe, NV. (See Note 9)
The accompanying notes are an integral part of these consolidated financial
statements.
F-8
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
1. Summary of significant accounting policies:
Operations:
The Company sells, markets and distributes consumer electronic products
and personal computer accessory products, both wholesale and retail, from
operations in Arizona and Belgium.
Consolidation:
The consolidated financial statements include the accounts of S C & T
International, Inc. and its wholly-owned subsidiary, SC&T Europe, NV, (formerly
Westex, NV) a Belgium corporation (collectively, the "Company"). All significant
intercompany transactions and balances have been eliminated in the
consolidation.
Revenue recognition:
Revenue from sales is recognized from direct sales to retail customers.
A sale is recorded when the product is shipped. The Company sells product
through internal sales personnel, as well as independent sales representatives.
In accordance with Statement of Financial Accounting Standards No. 48, a reserve
is recorded to reflect estimated returns of products from retail customers.
Reclassification:
Certain prior period amounts have been reclassified to conform to the
current period presentation.
Accounts receivable:
Accounts receivable are primarily due from retailers and commercial
accounts in the United States and internationally (See Note 2).
Inventories:
Inventories are stated at the lower of cost or market. Cost is
determined by the first-in, first out (FIFO) method. The only major class of
inventory is finished goods (See Note 3).
Property, equipment, depreciation and amortization:
Property and equipment are stated at cost. Depreciation is provided on
the straight-line method over the estimated useful lives of the assets. The
estimated useful lives range from 3 to 5 years. (See Note 4)
F-9
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
1. Summary of significant accounting policies, continued:
Research and development:
Research and development costs for new products are expensed until
feasibility of the product is established.
Product development costs:
Product development costs are recorded when product feasibility is
established, and are stated at cost. Product development costs are being
amortized using the straight-line method over the 12 month period immediately
subsequent to the products introduction to market.
Advertising:
Advertising costs are charged to operations as incurred. Advertising
costs for the years ended June 30, 1996 and June 30, 1995 were $262,000 and
$107,000 respectively.
Income taxes:
The Company adopted the provisions of Financial Accounting Standards
Board No. 109, Accounting for Income Taxes. This statement provides for
calculating the provision for income taxes and the related assets and/or
liabilities using the liability method.
Deferred income taxes are recognized for the tax consequences in future
years of differences between the tax bases of assets and liabilities and their
financial reporting amounts at each year end based on enacted tax laws and
statutory tax rates applicable to the periods in which the differences are
expected to affect taxable income. Valuation allowances are established when
necessary to reduce deferred tax assets to the amount expected to be realized.
Income tax benefit (expense) is the tax receivable (payable) for the period and
the change during the period in deferred tax assets and liabilities (See Note
7).
Foreign currency translation:
Assets and liabilities in foreign currencies are translated into
dollars at the rates in effect at the balance sheet date. Revenues and expenses
are translated at average rates for the year. The net exchange difference
resulting from these transactions is separately stated in the equity section of
the balance sheet.
Loss per common share:
Computation of loss per common share is based on the weighted average
number of common shares outstanding during the respective years.
F-10
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
1. Summary of significant accounting policies, continued:
Financial instruments:
The fair value of Company financial instruments, including cash, the
short-term certificate of deposit and notes receivable from owners, approximate
their carrying value. In addition, based on the borrowing rates currently
available to the Company for bank loans with similar terms and average
maturities, the fair value approximates carrying value.
Financial statement estimates:
The preparation of financial statements in conformity with generally
accepted accounting principle requires management to make estimates and
assumptions that affect the reported values of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported values of revenues and expenses during the reporting
period. Actual results could differ from such estimates.
2. Receivables:
Receivables at June 30, 1996 consist of the following:
Trade accounts receivable $ 701,951
Related party (Note 9) 64,503
Allowance for returns and doubtful accounts (26,000)
------------
$ 740,454
============
Included in trade accounts receivable are approximately $155,000 of
factored receivables at June 30, 1996. Advances from factor consist of receipts
from the factoring company representing approximately 80% of the factored
receivable balances. The Company is obligated to buy back any receivable which
has not been paid to the factoring agency within 90 days.
3. Inventory:
Inventory at June 30, 1996 consists of the following:
Finished goods $ 1,403,688
Advances on purchases of inventory 187,393
Reserve for obsolescence (159,000)
-------------
$ 1,432,081
=============
F-11
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
3. Inventory, continued:
Advances on purchases of inventory are for inventory currently being
manufactured or anticipated to be manufactured in the near future.
The inventory adjustment to carrying value consists of adjustments
relating to the Company's decision to reduce the price of certain of its first
generation products remaining in inventory in anticipation of the introduction
of second generation products to be released.
4. Property and equipment:
Property and equipment at June 30, 1996 consists of the following:
Office Furniture and Equipment $ 263,372
Tools & Dies 63,828
Vehicles 21,673
------------
348,873
Less Accumulated Depreciation (119,188)
------------
$ 229,685
============
Depreciation expense totaled $80,515 and $39,887 for the years ended
June 30, 1996 and 1995, respectively.
Net property and equipment located in Belgium is $36,452 at June 30,
1996.
5. Long-term debt:
Long-term debt at June 30, 1996 consists of the following:
Note payable, due in monthly installments of $463 plus interest
through November, 1997, collateralized by a vehicle.
$ 6,822
Less current portion 5,556
-----------
$ 1,266
===========
At June 30, 1996, the aggregate maturities of debt for the succeeding
years is as follows:
1997 $ 5,556
1998 1,266
---------
Total $ 6,822
=========
F-12
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
6. Notes payable, bank:
Notes payable, bank, consist of the following:
<TABLE>
<S> <C>
The Company has a line of credit due on demand with a bank in Belgium
at a variable rate of interest of approximately 11.5%. Borrowings
under the line of credit are collateralized by substantially all of
the assets of the subsidiary.
$ 51,528
The Company has a second line of credit with a bank in Belgium at a
variable rate of interest that fluctuates based on the transaction.
The bank advances approximately 93% of the specific invoices.
Repayment is due 10 days after the due date of the accounts receivable
invoice. Borrowing under this line of credit are collateralized by
substantially all of the assets of the
subsidiary. 27,000
---------------
$ 78,528
===============
</TABLE>
7. Income taxes:
The components of the net deferred tax assets and liabilities at June
30, 1996 are as follows:
1996
---------------
Deferred tax assets $ 1,250,000
Deferred tax liabilities -
Valuation allowance (1,250,000)
--------------
Net deferred assets and liabilities $ -
==============
The types of temporary differences between tax bases of assets and
liabilities and their financial reporting amounts that give rise to deferred tax
assets relate primarily to the accounts receivable and inventory allowances and
net operating loss carryforwards available.
At June 30, 1996, the Company has net operating loss carryforwards for
federal and state income tax reporting purposes of approximately $3,125,000 that
will begin to expire in 2010 for federal purposes and in 2000 for state
purposes. These are available to offset taxable income in subsequent years.
Due to changes in ownership during the year ended June 30, 1995, the
availability of net operating losses incurred totaling approximately $802,000
will be restricted as provided under Internal Revenue Code Section 382 and
related regulations.
F-13
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
7. Income taxes, continued:
Due to the Company's initial public offering during the year ended June
30, 1996, and the private offering of Series A Preferred Stock in June of 1996,
the remaining net operating loss carryforwards of approximately $2,323,000 may
be restricted as provided under Internal Revenue Code Section 382 and related
regulations.
At June 30, 1996, the Company has recorded a valuation allowance for
all deferred tax assets because the benefit of those temporary differences may
not be realized by the Company.
8. Commitments and contingencies:
Operating leases:
The Company leases an office and warehouse from an unrelated third
party under an operating lease which expires in August 1997. Under the lease,
the monthly rental is approximately $4,900, and the Company is responsible for
certain expenses.
The Company leased its office location in Belgium through April 30,
1996 from a former director, who was a shareholder, who owned 50% of the
building where the office was located, for a monthly rental of approximately
$3,700. The Company exercised its cancellation rights described in the lease and
relocated to a temporary facility, effective May 1, 1996. As of September 1,
1996, the Belgian office relocated to Gent, Belgium. The new operating lease
provides for a monthly rental rate of approximately $1,600 per month, with a 60
day cancellation clause effective after December 31, 1996.
The Company leases a corporate apartment from an unrelated third party
under an operating lease which expires December 31, 1996. Under the lease, the
monthly rental is approximately $700, and the Company is responsible for certain
expenses.
The Company leases office equipment under three operating leases
requiring monthly payments of approximately $500. The leases expire in January
1997, November 1997, and November 1998.
Future minimum rental payments required under operating leases that
have initial or remaining noncancellable lease terms in excess of one year as of
June 30, 1996 are as follows:
Operating leases:
1997 $ 79,000
1998 13,000
1999 1,000
-------------
$ 93,000
=============
F-14
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
8. Commitments and contingencies, continued:
Operating leases, continued:
Total rental expenses for the years ended June 30,1996 and June 30,1995
were approximately $119,000 and $103,000, respectively.
Pending or threatened litigation:
The Company, from time to time, is a party to various legal proceedings
which are incidental to its business. In the opinion of management, the ultimate
resolution of these proceedings will not have a materially adverse affect on the
Company's financial position or results of operations.
The Company is currently suing a competitor, who competes in the same
industry. Any potential benefit of this lawsuit is not reflected in these
financial statements.
Inventory:
At June 30, 1996, the Company has outstanding purchase commitments for
inventory acquisitions of approximately $1,700,000. The Company has advanced
funds against the purchase commitments totalling $187,393 (See Note 3).
9. Related party transactions:
Related party receivables:
The Company has a related party receivable from its President, who is
also a shareholder. The note receivable bears interest at 8.25% annually. The
repayment terms provide for 36 principal payments of $500 per month, with a
balloon payment of $33,814 plus interest due at the end of the term. The
receivable balance was $42,400 at June 30, 1996, of which $6,000 is current and
$36,400 is long-term.
The related party receivable also includes $12,349 due from the former
General Director of SC&T Europe, NV. This receivable is non-interest bearing and
due on demand.
The Company also advances funds to employees for traveling purposes.
These advances are due on demand and are non-interest bearing. The balance at
June 30, 1996 was $9,754.
F-15
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
9. Related party transactions, continued:
Treasury stock:
In June 1996, the Company entered into a separation and settlement
agreement with the former General Director of the Belgian subsidiary, whereby
the former General Director resigned as an officer, director, and employee of
the Company. Under the terms of the agreement, the former General Director will
receive $29,415. In addition, the former General Director has forfeited 200,000
shares of common stock of the Company owned by him on the date of the agreement.
Upon compliance with the terms of the agreement, 25,000 shares of common stock
will be issued to the former General Director.
Employment agreement:
In September 1995, the Company entered into an employment agreement
with its President, who is also a shareholder, for a period of five years. The
agreement provides for an annual salary of $104,000 and contains termination
provisions regarding the repurchase of the President's stock and guaranteed
salary payments.
Short-term bridge financing:
In December 1995, the Company used approximately $1,875,000 of the
proceeds from its initial public offering to repay two short-term bridge
financing arrangements with shareholders and all accrued interest associated
with the debt.
10. Issuance of common stock:
During the quarter ended December 31, 1995, the Company completed a
public offering of Common Stock. The Company received net proceeds of
approximately $3,615,000 and issued a total of 900,000 shares of Common Stock.
The Company also issued 450,000 Redeemable Common Stock Purchase
Warrants. Each Warrant represented the right to purchase one-half share of
Common Stock at a price of $7.00 per share, subject to adjustment under certain
circumstances. The Warrants expire three years from December 1995. Each warrant
is immediately exercisable. The Warrants are redeemable by the Company for $0.05
per Warrant upon 30 days' notice mailed within 20 days after the closing bid
price of the Common Stock has equaled or exceeded $8.00 per share for a period
of 20 consecutive trading days. The Company received cash of approximately
$45,000.
In January 1996, the Company issued an additional 67,500 Redeemable
Common Stock Purchase Warrants. The Company received cash of approximately
$6,750.
In October 1995, the Company increased its authorized share capital to
25,000,000 shares of common stock and authorized 5,000,000 shares of preferred
stock.
F-16
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
10. Issuance of common stock, continued:
During the quarter ended September 30, 1995, the Company completed a
private placement for short-term bridge financing of 8% Subordinated Debentures,
due at the earlier of September 30, 1996, or upon completion of the offering.
The Company issued 87,500 shares of Common Stock at $1.00 per share to obtain
the short-term bridge financing.
In September 1995, the President was issued 15,822 shares of Common
Stock at a value of $1.00 per share for past services provided to the Company.
In June 1995, the Company reissued its shares of stock at $0.01 par
instead of no par.
During the year ended June 30, 1995, the Company completed a private
offering of Common Stock, par value of $0.01 per share. The Company received net
proceeds of approximately $1,500,000, and issued a total of 2,000,000 shares of
Common Stock.
In addition, a $20,000 note payable was converted to 8,000 shares of
Common Stock.
The Company also issued 75,000 shares of Common Stock on May 31, 1995
at $1.00 per share to obtain inventory financing.
On December 31, 1994, the Company purchased all of the outstanding
shares of SC&T Europe, NV. (formerly Westex, NV) for 210,000 shares of common
stock, valued at $96,263. (See Note 9 & Note 12)
11. Issuance of preferred stock:
In June 1996, the Company issued 1,051 shares of Series A Preferred
Stock, $0.01 par value per share, for $10,000 per share with an accretion rate
of 8% per annum up to the date of conversion. The Company received net proceeds
of approximately $9,669,000 for the 1,051 shares. The shares may be converted to
Common Stock at a conversion price which shall be the lesser of $7.75 per share
or 85% of the average closing bid price of the Company's Common Stock for the
ten trading days preceeding the conversion date. The Series A Preferred Stock is
converted as follows: one-third of the shares of Series A Preferred Stock on or
subsequent to August 20, 1996; one-third of the shares on or subsequent to
September 19, 1996; and the remaining shares on or subsequent to October 19,
1996. All conversions are subject to the Company's right of redemption.
The Series A Preferred Stock will bear no dividends and have no voting
rights except as otherwise required by Arizona statute.
F-17
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
11. Issuance of preferred stock, continued:
Upon dissolution of the Company the holders of Series A Preferred Stock
are entitled to distributions in the sum of the original Series A issue price
for each outstanding share, plus 8% of the original Series A issue price per
annum since purchase. At any time commencing 12 months and one day after the
last closing date, the Company shall have the right to redeem any or all of the
Series A Preferred Stock subject to certain conditions set forth in the
Certificate of Designation.
12. Purchase of subsidiary:
On December 31, 1994, the Company purchased all of the outstanding
shares of Westex NV of Antwerp, Belgium for 210,000 shares of common stock,
valued at $96,263. Westex NV is a distributor of consumer electronic products
and personal computer accessory products, both wholesale and retail. The
acquisition has been accounted for by the purchase method of accounting and the
purchase price of $96,263 approximates the fair value of the net assets
acquired. The operating results of this acquisition are included in the
company's consolidated results of operations from the date of acquisition. In
June, 1996, the subsidiary's name was changed to SC&T Europe, NV.
The following unaudited proforma summary presents the consolidated
results of operations for the year ended June 30, 1995 as if the acquisition had
occurred at the beginning of the year, July 1, 1994, and does not purport to be
indicative of what would have occurred had the acquisition been made as of that
date or of results which may occur in the future.
Net sales $ 4,883,925
==================
Net loss $ (842,973)
===================
Net loss per common share $ (0.23)
==================
13. Significant customer:
The Company had one significant customer which accounted for
approximately 12% of the Company's total revenues for the year ended June 30,
1996. The accounts receivable balance for that customer totaled approximately
$110,000 at June 30, 1996.
The Company had one significant customer which accounted for
approximately 22% of the Company's total revenues for the year ended June 30,
1995.
F-18
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
14. Options and warrants:
Incentive stock option plan:
The Company has a qualified incentive stock option plan for its key
employees, consultants and independent contractors. The grants expire in
February, 2005. As of June 30, 1996, 22,915 grants had been exercised.
The following summarizes the activity for the Plan at June 30, 1996:
Number Option
of Shares Price Per Share
--------- ---------------
Options outstanding at beginning of year 723,500 $1.00 - $1.75
Granted 60,000 $1.50 - $5.70
Canceled (184,000) $1.00 - $1.75
Exercised (22,915) $1.50
---------
Options outstanding at end of year 576,585 $1.00 - $5.70
=========
Options available for grant 433,915
=========
Warrants:
During the year ended June 30, 1995, the Company issued warrants to
purchase an aggregate of 588,500 shares of Common Stock. The Warrants were
issued to obtain $1,000,000 of bridge inventory financing. The warrants are
exercisable at $1.20 per share and vest over a three year period. The warrants
expire in September 1998.
In connection with the Company's private placement, in June 1996, of
1,051 shares of Series A Preferred Stock the Company issued warrants to purchase
an aggregate of 108,490 shares of Common Stock. The warrants are exercisable
immediately at $7.75 per share. The warrants expire on June 17, 2001.
The Company issued 517,500 IPO Warrants in connection with its initial
public offering.
In connection with the Company's initial public offering, the Company
sold warrants to the IPO Underwriter, at a purchase price of $.001 per warrant,
to purchase from the Company 90,000 shares of Common Stock and 45,000 IPO
Warrants. The Underwriter's Warrants are exercisable for a period of four years
commencing one year from December 15, 1995 at a per share exercise price equal
to $6.25 per share of Common Stock and $.125 per IPO Warrant.
F-19
<PAGE>
SC&T INTERNATIONAL, INC.
AND SUBSIDIARY
Notes to Consolidated Financial Statements
15. Subsequent events:
The Company is reviewing alternatives for additional office and
warehouse space to meet the demands related to the Company's anticipated growth.
The Company has placed an earnest deposit on a potential future office site as
it evaluates the various options available.
In August 1996, the Company established a wholly-owned marketing and
sales subsidiary, SC&T U.K., Ltd., located in northern England. This subsidiary
is responsible for sales in the United Kingdom and Eastern Europe.
In August 1996, the Company established a $500,000 revolving line of
credit with a bank at a variable rate of interest. Borrowings under this line of
credit are subject to certain conditions including compensating balances. At
August 20, 1996 the Company had not drawn against this line of credit.
In September 1996, the Company established a wholly-owned marketing and
sales subsidiary, SC&T America, Inc. located in Phoenix, Arizona. The subsidiary
is responsible for sales in the United States and Canada.
F-20
<PAGE>
==========================================================
No person has been authorized to give any information or to make any
representation, not contained in this Prospectus, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any of the securities covered by this Prospectus
in any jurisdiction or to any person to whom it is unlawful to make such offer
or solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of the Company or that the information contained
herein is correct as of any date subsequent to the date hereof.
-----------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PROSPECTUS SUMMARY ...................................................... 3
RISK FACTORS ............................................................ 5
DIVIDEND POLICY ......................................................... 11
USE OF PROCEEDS ......................................................... 11
PRICE RANGE OF COMMON STOCK ............................................. 11
MANAGEMENT'S DISCUSSION AND
ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF
OPERATIONS ............................................................. 12
BUSINESS ................................................................ 16
MANAGEMENT .............................................................. 22
CERTAIN TRANSACTIONS .................................................... 26
PRINCIPAL SHAREHOLDERS .................................................. 28
DESCRIPTION OF SECURITIES ............................................... 31
PLAN OF DISTRIBUTION .................................................... 37
SELLING SHAREHOLDERS .................................................... 38
LEGAL OPINIONS .......................................................... 41
EXPERTS ................................................................. 41
INDEX TO FINANCIAL STATEMENTS ........................................... F-1
</TABLE>
================================================================================
================================================================================
SC&T International, Inc.
17,958,760 Shares of
Common Stock
----------
PROSPECTUS
----------
____________, 1996
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 24. Indemnification of Directors and Officers.
Under Arizona law, the Registrant is empowered, under certain
circumstances, to indemnify the directors, officers, employees, and agents of
the Registrant. Section 10-851 of the Arizona Business Corporation Act
authorizes the Registrant, generally, to indemnify directors, officers,
employees, and agents against expenses and liabilities (including amounts paid
in settlement) in connection with any lawsuit or proceeding involving any such
director, officer, employees, or agents if he or she acted, or failed to act, in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the Registrant and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. However, if the lawsuit is by or in the right of the
Registrant (a shareholders' derivative suit on behalf of the Registrant), no
director, officer, employee, or agent can be indemnified against judgments or
amounts paid in settlement, and no indemnification for expenses may be made with
respect to any claim, issue or matter as to which such director, officer,
employee, or agent shall have been adjudged to be liable to the Registrant
(unless a court determines that indemnification is appropriate for reasonable
expenses incurred).
Under Arizona law, unless ordered by a court, indemnification pursuant
to the foregoing may only be made by the Registrant as authorized in a specific
case upon a determination that indemnification is proper under the circumstances
because the director, officer, employee, or agent has met the applicable
standard of conduct. Such determination shall be made generally (i) by the Board
of Directors of the Registrant, acting by a majority vote of a quorum consisting
of directors who were not parties to the lawsuit or proceeding; (ii) by
independent legal counsel appointed by a majority of the disinterested directors
for that purpose or, if there are no disinterested directors, then as selected
by majority vote of the Board of Directors; or (iii) by the shareholders.
In addition, under Arizona law, the Registrant is required, unless
limited by its Articles, to (i) indemnify a director or officer of the Company
against reasonable expenses incurred by the officer or director in connection
with any lawsuit or proceeding if such director or officer has been successful
on the merits or otherwise in the defense of such lawsuit or proceedings and
(ii) indemnify, subject to certain conditions, outside directors against
liability and pay an outside director's expenses in advance of a final
disposition of a proceeding. The Registrant may advance or pay expenses incurred
by a director, officer, employee, or agent in defense of any such lawsuit or
proceeding upon the receipt of (i) a written affirmation from the director,
officer, employee, or agent of such person's good faith belief that he or she
has met the applicable standard of conduct; (ii) an undertaking by or on behalf
of such director, officer, employee, or agent to repay such amount if it is
ultimately determined that he or she is not entitled to be indemnified by the
Registrant; and (iii) a determination is made that the facts then known would
not preclude indemnification under Arizona law.
Pursuant to Arizona law, the Company's Articles of Incorporation
provide that the Company shall indemnify any person who incurs liability or
expense by such person acting as an officer or director of the Company. However,
the Registrant's Articles of Incorporation do not permit indemnification or
advancement of expenses with respect to any action, suit, or proceeding whether
civil, criminal, administrative, or investigative ("Proceeding"), or any claims
therein brought or made by him or her against the Registrant, unless such
Proceeding or claim is approved by the Board of Directors of the Registrant.
The Registrant maintains directors' and officers' liability insurance.
Arizona law does not permit the elimination of liability for (a) the
amount of a financial benefit received by the director to which the director is
not entitled; (b) an intentional infliction of harm on the Company or its
shareholders; (c) certain unlawful distributions to shareholders; and (d) an
intentional violation of criminal law.
II-1
<PAGE>
The effect of this provision in the Articles of Incorporation is to eliminate
the rights of the Registrant and its shareholders (through shareholders'
derivative suits on behalf of the Registrant) to recover monetary damages
against a director for breach of fiduciary duty as a director (including
breaches resulting from negligent or grossly negligent behavior) except in the
situations described in clauses (a) through (d) above. This provision will not
alter the liability of directors under federal securities laws.
Pursuant to the terms of Registration Rights Agreements between the
Registrant and each of the Selling Shareholders, the directors and officers of
the Company also are indemnified against certain civil liabilities that they may
incur under the Securities Act in connection with this offering. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to officers, directors, or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Item 25. Other Expenses of Issuance and Distribution.
The expenses incurred or to be incurred in connection with the
preparation and filing of this Registration Statement are estimated to be as
follows:
Printing and engraving expenses......................... $ 10,000*
Registration and NASD filing fees ...................... 10,838*
Legal fees and expenses ................................ 15,000*
Accounting fees and expenses............................ 3,500*
Miscellaneous........................................... 7,662*
--------
Total.............................................. $ 47,000
========
*Estimated
Item 26. Recent Sales of Unregistered Securities.
In connection with its incorporation and initial organization in 1993,
the Company issued and sold an aggregate of 1,677,870 shares of Common Stock to
James L. Copland in exchange for cash, equipment, and past services valued at
$31,918, without registration under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon the exemption from registration provided by
Sections 3(a)(11) and/or 4(2) of the Securities Act.
In April 1995, the Company issued and sold an aggregate of 2,000,000
shares of Common Stock to Maraval and Associates, Bauman, Ltd., Robert Adams,
Caspian Consulting, Ltd., Roddy Diprimo, Ltd., Umbiquity Holdings, S.A. and
Thomas Vittor for a total of $1,500,000 in cash, without registration under the
Securities Act, in reliance upon the exemptions from registration provided by
Section 4(2) of the Securities Act.
In April 1995, the Company issued an aggregate of 8,000 shares of
Common Stock to Ronald Fry and Leonard Vitiritto for a total of $20,000
represented by notes payable from the Company without registration under the
Securities Act in reliance upon the exemption from registration provided by
Sections 4(2) and/or 4(6) of the Securities Act.
In April and May 1995, the Company issued and sold $1,000,000 in
principal amount of 6% notes, 75,000 shares of Common Stock and warrants to
purchase 588,500 shares of Common Stock at a price of $1.20 per share, to
Maraval and Associates, Bauman, Ltd., Robert Adams, Caspian Consulting, Ltd.,
Roddy Diprimo, Ltd., and Umbiquity Holdings, S.A., without registration under
the Securities Act, in reliance upon exemptions from registration provided by
Sections 3(a)(3) and/or 4(2) of the Securities Act.
II-2
<PAGE>
In August and September 1995, the Company issued and sold $875,000 in
principal amount of 8% subordinated notes and 87,500 shares of Common Stock to
Andrew and Tracy Krantz, Italo Renauld, Richard H. Davimos, TTEE UAD 5/12/92 FBO
Richard H. Davimos, Frank Quinn, Ileana Brown, Toby Miller, Ken Kirschenbaum,
William Clark, Neil L. Bellett, Laura Quinn, Larry R. Kuhnert and Jackie L.
Kuhnert, Don Brennan, Timothy Gulla, John F. McKinney, John Hunter, Sally
Hauser, Romilda Abramo, Donald E. Millard, Donna Browning and Walter Browning,
and Richard Jay Rasmussen without registration under the Securities Act in
reliance upon exemptions from registration provided by Sections 3(a)(3) and/or
4(2) of the Securities Act.
In February and September 1995, and August 1996, the Company issued
options to purchase 793,500 shares of Common Stock to certain employees of the
Company and its wholly owned subsidiary under the Company's Stock Option Plan.
The options are exercisable at a price ranging from $1.00 per share to $5.70 per
share. The options were issued without registration under the Securities Act in
reliance upon the exemption from registration provided by Section 4(2) of the
Securities Act and/or Rule 701 promulgated thereunder.
In September 1995, the Company issued and sold 15,822 of Common Stock
to James L. Copland in partial payment of amounts owed to Mr. Copland, such
portion valued at $15,822, without registration under the Securities Act, in
reliance upon the exemptions from registration provided by Sections 3(a)(11)
and/or 4(2) of the Securities Act.
In June, September, and October 1996, the Company issued 41,247 shares
of Common Stock to Atom & Associates, Inc. Upon exercise of a stock option,
without registration under the Securities Act in reliance upon the exemption
from registration provided by Section 4(2) of the Securities Act.
In June 1996, the Company issued 1,051 shares of Series A Preferred
Stock to 28 non-U.S. persons at a price of $10,000 per share and 108,490 options
to representatives of the Placement Agent. The shares and options were issued
without registration under the Securities Act in reliance upon exemptions from
registration provided by Section 4(2) of the Securities Act and/or Regulation S
promulgated thereunder.
Item 27. Exhibits.
(a) The following exhibits to this Registration Statement are
filed herewith:
1.1+ Form of Underwriting Agreement
1.2+ Form of Selling Agreement
1.3+ Form of Underwriter's Warrants
1.4+ Form of Warrant Agreement
3.1+ Restated Articles of Incorporation
3.2+ Bylaws
4.1 Form of Certificate evidencing shares of Common Stock
4.2 Form of Certificate evidencing Stock Purchase Warrant
4.3 Certificate of Designation of Series A Preferred Stock
4.4 Form of Certificate evidencing Series A Preferred Stock.
5.1* Opinion of O'Connor, Cavanagh, Anderson, Killingsworth &
Beshears, P.A.
10.1+ Lease Agreement between the Company and LaSalle Business
Properties, dated February 1, 1994
10.2+ Lease Agreement between Westex N.V. and Marc Devers and Rudi
Devers
10.3+ Form of Employment Agreement between the Company and James L.
Copland dated September 1, 1995
10.4+ Deleted
10.5+ Stock Option Plan
10.6+ Form of Option Agreement
10.7+ Agreement between the Company and Sound Retrieval System dated
March 31, 1995
II-3
<PAGE>
10.8+ Agreement between the Company and Design Continuum, Inc. dated
June 8, 1995
10.9+ Agreement between the Company and Design Continuum, Inc. dated
October 13, 1995
10.10 Exclusive Distribution Agreement between the Company and Home
Arcade Systems, Inc. dated December 29, 1995
10.11 Exclusive Purchase and Manufacturing Agreement between the
Company and Home Arcade Systems, Inc. dated March 19, 1996
10.12 Agreement between Phillips Motorsports, Inc. and SC&T Racing
Enterprises Limited dated October 1, 1996.
10.13 Land Purchase Agreement between Thomas J. Paul, Inc. and SC&T
International, Inc. dated August 16, 1996.
21.0 Subsidiaries of the Registrant
23.1* Consent of Toback CPAs, P.C.
23.2* Consent of O'Connor, Cavanagh, Anderson, Killingsworth &
Beshears, P.A. (included as Exhibit 5.1 hereto)
24.0 Powers of Attorney of Directors and Executive Officers
(included on the Signature Page of the Registration Statement)
+ Filed previously as an exhibit to Registration Statement Number 33-96812 LA.
* Filed previously as an exhibit to Registration Statement Number 333-12889.
(b) All financial statement schedules that might otherwise be required
to be filed as part of this Registration Statement have been omitted because the
required information is shown in the financial statements or notes thereto, the
amounts involved are not significant, or the schedules are not applicable.
Item 28. Undertakings.
(a) The small business issuer will:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act.
(ii) Reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information 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 a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) Include any additional or changed material information on the
plan of distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
II-4
<PAGE>
(d) The small business issuer hereby undertakes to provide to the
Underwriter at the closing specified in the Underwriting Agreement certificates
in such denominations and registered in such names as required by the
Underwriter to permit prompt delivery to each purchaser.
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the small business issuer pursuant to the foregoing provisions, or otherwise,
the small business issuer has been advised that in the opinion of the Securities
and Exchange Commission 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 by the small business issuer of expenses incurred or paid by a director,
officer, or controlling person of the small business issuer 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 small business issuer 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 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.
(f) The small business issuer will:
(1) For determining any liability under the Securities Act,
treat the information omitted from the form of prospectus filed as a part of
this registration statement in reliance upon Rule 430(A) and contained in a form
of prospectus filed by the small business issuer pursuant to Rule 424(b)(1), or
(4), or 497(h) under the Securities Act as part of this registration statement
as of the date the Commission declared it effective.
(2) For determining any liability under the Securities Act,
treat each post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration statement,
and that offering of the securities at that time as the initial bona fide
offering of those securities.
II-5
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe the
registrant meets all of the requirements of filing on Form SB-2 and authorizes
this registration statement to be signed on its behalf by the undersigned, in
the City of Phoenix, State of Arizona, on November 5, 1996.
SC&T International, Inc.
By: /s/ James L. Copland
----------------------------------------------
James L. Copland
President, Treasurer, Chief Executive Officer,
and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose
signature appears below constitutes and appoints jointly and severally, James L.
Copland and Catherine Copland, and each one of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including pre-effective and
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all which said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do, or cause to be
done by virtue hereof.
In accordance with the requirements of the Securities Act of
1933, this registration statement was signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James L. Copland President, Treasurer, Chief Executive Officer, November 5, 1996
- --------------------------- and Director
James L. Copland
/s/ Catherine Copland Assistant Secretary and Director November 5, 1996
- ---------------------------
Catherine Copland
/s/ Timothy J. Stocker Vice President of Finance, Chief Financial Officer November 5, 1996
- --------------------------- and Secretary
Timothy J. Stocker
/s/ Harry G. Wilson Director November 5, 1996
- ---------------------------
Harry G. Wilson
/s/ Tommie E. Moxley Director November 5, 1996
- ---------------------------
Tommie E. Moxley
</TABLE>
II-6
EXHIBIT 4.1
SC&T
INTERNATIONAL, INC.
SC&T INTERNATIONAL, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF ARIZONA
AUTHORIZED SHARES 25,000,000 PAR VALUE $0.01
CUSIP 783975 10 5
SEE REVERSE
FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT
Is The Owner of
Fully Paid and Non-Assessable Shares of Common Stock, Par Value $0.01, of
SC&T INTERNATIONAL, INC.
transferable on the books of the Corporation by the holder hereof, in person or
by duly authorized attorney, upon surrender of this Certificate properly
endorsed or accompanied by a proper assignment. This Certificate and the shares
represented hereby are issued and shall be subject to all the provisions of the
Articles of Incorporation and the Bylaws of the Corporation, and all amendments
thereto, copies of which are on file at the principal office of the Corporation
and the Transfer Agent, to all of which the holder of this Certificate by
acceptance thereof assents. This Certificate is not valid unless countersigned
by the Transfer Agent.
IN WITNESS WHEREOF, the Corporation has caused the facsimile signatures
of its duly authorized officers and its facsimile seal to be hereunto affixed.
Dated:
/s/ Timothy J. Stocker /s/ J.L. Copland
Secretary President
SC&T INTERNATIONAL, INC.
INCORPORATED
June 23,
1993
* Arizona *
COUNTERSIGNED:
American Securities Transfer, Inc.
P.O. Box 1596
Denver, Colorado 80201
By
-----------------------------------------------
Transfer Agent & Registrar Authorized Signature
<PAGE>
SC&T INTERNATIONAL, INC.
The Corporation will furnish to any shareholder upon request and
without charge, a full statement of the designations, preferences, limitations,
and relative rights of the shares of each other class of stock or series thereof
authorized to be issued.
The following abbreviations when used in the description on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
<TABLE>
<S> <C>
TEN COM -as tenants in common UNIF GIFT MIN ACT- Custodian
TEN ENT -as tenants by the entireties ---------------------
JT TEN -as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants under Uniform Gifts to Minors
in common Act
--------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
________________________________________________________________________________
For Value Received,________________________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------
| |
- -------------------------------
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
__________________________________________________________________________Shares
of the Common Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
________________________________________________________________attorney-in-fact
to transfer the said stock on the books of the within-named Corporation, with
full power of substitution in the premises.
Dated ________________________
____________________________________________________________
____________________________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME(S) AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
Signature(s) Guaranteed:
_________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(Banks, Stockbrokers, Savings and Loan Associations and Credit Unions with
membership in an approved signature guarantee Medallion Program), pursuant to
S.E.C. Rule 17 Ad-15.
EXHIBIT 4.2
NUMBER WARRANTS
- ------------ ---------------------------
|W | | |
- ------------ | |
| |
---------------------------
---------------------------
| CUSIP 783975 11 3 |
---------------------------
SEE REVERSE
FOR CERTAIN DEFINITIONS
INCORPORATED UNDER THE LAWS OF THE STATE OF ARIZONA
This certifies that, for value received,
the Registered Holder hereof or assigns (the "Holder"), is entitled to purchase
from SC&T INTERNATIONAL, INC., an Arizona corporation (the "Company"), at any
time after 9:00 a.m. New York Time on December 14, 1995 and before 5:00 p.m.,
New York Time, on December 13, 1998 at the purchase price per Share of $7.00
(the "Warrant Price"), one-half (1/2) of one (1) share of common Stock of the
Company for each Warrant represented by this certificate (the "Shares"). The
number of Shares purchasable upon exercise of the Warrant evidenced hereby and
the Warrant Price per Share shall be subject to adjustment from time to time as
set forth in the warrant Agreement referred to below.
The Warrants evidenced hereby may be exercised in whole or in part by
presentation of this Warrant certificate with the Purchase Form attached hereto
duly executed guarantee and simultaneous payment of the Warrant Price (subject
to adjustment) at the principal office in Colorado of American Securities
Transfer, Inc. (the "Warrant Agent"). Payment of such price shall be made at the
option of the Holder in cash or by certified check or bank draft, all as
provided in the Warrant Agreement.
The Warrants evidenced hereby entitle the holder of such warrant to
acquire one-half (1/2) of one share (1) of Common Stock and are issued under and
in accordance with the Warrant Purchase Agreement dated as of December 14, 1995,
between the Company and the Warrant Agent (the "Warrant Agreement") and are
subject to the terms and provisions contained in such warrant Agreement, to all
of which the Holder of this Warrant certificate by acceptance hereof consents. A
copy of the Warrant Agreement may be obtained for inspection by the Holder
hereof upon written request to the Warrant Agent.
Upon any partial exercise of the Warrants evidenced hereby, there shall
be issued to the Holder a new Warrant certificate in respect of the Shares
evidenced hereby which shall not have been exercised. This Warrant certificate
may be exchanged at the office of the Warrant Agent by surrender of this Warrant
certificate properly endorsed either separately or in combination with one or
more other Warrants for one or more new Warrants to purchase the same aggregate
number of Shares as here evidenced by the warrant or Warrants exchanged. No
fractional Shares will be issued upon the exercise of rights to purchase
hereunder, but the Company shall pay the cash value of any fraction upon the
exercise of one or more Warrants.
<PAGE>
The Warrants evidenced hereby are not transferable except in the manner and
subject to the limitations set forth in the Warrant Agreement.
The number of Shares issuable upon exercise of this Warrant to acquire
the Shares shall be subject to adjustment as provided in Section 9 of the
Warrant Agreement.
The Holder hereof may be treated by the Company, the Warrant Agent and
all other persons dealing with this Warrant certificate as the absolute owner
hereof for all purposes and as the person entitled to exercise the rights
represented hereby, any notice to the contrary notwithstanding, and until such
transfer is entered on such books, the Company may treat the Holder hereof as
the owner for all purposes.
Dated: SC&T INTERNATIONAL, INC.
By: /s/ J.L. Copland
--------------------------------
President
Attest: /s/ Timothy J. Stocker
SC&T INTERNATIONAL, INC. ----------------------------
INCORPORATED Secretary
June 23,
1993 COUNTERSIGNED:
* Arizona * American Securities Transfer, Inc.
P.O. Box 1596
Denver, Colorado 80201
By
--------------------------------
Warrant Agent Authorized Signature
<PAGE>
SC&T INTERNATIONAL, INC.
Mailing Address
SC&T INTERNATIONAL, INC.
3837 E. LaSalle Street
Phoenix, Arizona 85040
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant certificate for, and to purchase
thereunder, _________ Shares of Common Stock provided for therein, and requests
that certificates for such Shares be issued in the name of:
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name, Address and Social Security Number)
and, if said number of Shares shall not be all the Shares purchasable hereunder,
that a new Warrant certificate for the balance of the Shares purchasable under
the within Warrant certificate be registered in the name of the undersigned
Holder or his Assignee as below indicated and delivered to the address stated
below.
Dated:_______________________________
Name of Holder or Assignee:
________________________________________________________________________________
(Please Print)
Address:________________________________________________________________________
Signature:
__________________________
Note: The above signature must correspond with the name as it appears upon the
face of the within Warrant certificate in every particular, without alteration
or enlargement or any change whatever, unless these Warrants have been assigned.
Signature(s) Guaranteed:
__________________________
the signature(s) should be guaranteed by an eligible guarantor institution
(Banks, Stockbrokers, Savings and Loan Associations and Credit Unions with
membership in an approved signature guarantee Medallion Program), pursuant to
S.E.C. Rule 17Ad-15.
ASSIGNMENT
(To be signed only upon assignment of Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto____________________________________________________________________________
________________________________________________________________________________
(Name and Address of Assignee Must be Printed or Typewritten)
the within Warrants, hereby irrevocably constituting and appointing____________
Attorney to transfer said Warrants on the books of the Company, with full power
of substitution in the premises.
Dated:________________________
_____________________________________________
Signature of Registered Holder
Note: The signature on this assignment must
correspond with the name as it appears upon
the face of the within Warrant certificate in
every particular, without alteration or any
change whatever.
Signature(s) Guaranteed:
___________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(Banks, Stockbrokers, Savings and Loan Associations and Credit Unions with
membership in an approved signature guarantee Medallion Program), pursuant to
S.E.C. Rule 17Ad-15.
AZ CORP. COMMISSION
FILED
JUN 17 1996
APPR. SIGNATURE
---------------
TERM
---------------
DATE 6/17/96
---------------
0252003-4
STATEMENT PURSUANT TO SECTION 10-602
CERTIFICATE OF DESIGNATION OF
SERIES A PREFERRED STOCK
OF
SC&T International, Inc.
It is hereby certified that:
1. The name of the Company (hereinafter called the "Company") is SC&T
International, Inc., an Arizona corporation.
2. The certificate of incorporation of the Company authorize the
issuance of Five Million (5,000,000) shares of preferred stock, $.01 par value
per share, and expressly vests in the Board of Directors of the Company the
authority provided therein to issue any or all of said shares in one (1) or more
series and by resolution or resolutions to establish the designation and number
and to fix the relative rights and preferences of each series to be issued.
3. The Board of Directors of the Company, pursuant to the authority
expressly vested in it as aforesaid, has duly adopted as of June 10, 1996, the
following resolutions creating a Series A issue of Preferred Stock:
RESOLVED, that One Thousand Fifty-one (1,051) of the Five Million
(5,000,000) authorized shares of Preferred Stock of the Company shall be
designated Series A Preferred Stock, $.01 par value per share, and shall possess
the rights and preferences set forth below:
Section 1. Designation and Amount. The shares of such series shall have
a par value of $.01 per share and shall be designated as Series A Preferred
Stock (the "Series A Preferred Stock") and the number of shares constituting the
Series A Preferred Stock shall be One Thousand Fifty-one (1,051). The Series A
Preferred Stock shall be offered at a purchase price of Ten Thousand Dollars
($10,000) per share (the "Original Series A Issue Price"), with an eight percent
(8%) per annum accretion rate as set forth herein.
Section 2. Rank. The Series A Preferred Stock shall rank: (i) junior to
any other class or series of capital stock of the Company hereafter created
specifically ranking by its terms senior to the Series A Preferred Stock
(collectively, the "Senior Securities"); (ii) prior to all of the Company's
Common Stock, $.01 par value per share ("Common Stock"); (iii) prior to any
class or series of capital stock of the Company hereafter created not
specifically ranking by its terms senior to or on parity with any Series A
Preferred Stock of whatever subdivision (collectively, with the Common Stock,
"Junior Securities"); and (iv) on parity with any class or series of capital
stock of the Company hereafter created specifically ranking by its terms on
parity with the Series A Preferred Stock ("Parity Securities") in each case as
to distributions of assets upon liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary (all such distributions being referred
to collectively as "Distributions").
Section 3. Dividends. The Series A Preferred Stock will bear no
dividends, and the holders of the Series A Preferred Stock ("Holders") shall not
be entitled to receive dividends on the Series A Preferred Stock.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of the Company, either voluntary or involuntary, the Holders of shares of Series
A Preferred Stock shall be entitled to receive, immediately after any
distributions to Senior Securities required by the Company's Certificate of
Incorporation or any certificate of designation, and prior in preference to any
distribution to Junior Securities but in parity with any distribution to Parity
Securities, an amount per share equal to the sum of (i) the Original Series A
Issue Price for each outstanding share of Series A Preferred Stock and (ii) an
amount equal to eight percent (8%) of the Original Series A Issue Price per
annum for the
<PAGE>
period that has passed since the date that, in connection with the consummation
of the purchase by Holder of shares of Series A Preferred Stock from the
Company, the escrow agent first had in its possession funds representing full
payment for the shares of Series A Preferred Stock (such amount being referred
to herein as the "Premium"). If upon the occurrence of such event, and after
payment in full of the preferential amounts with respect to the Senior
Securities, the assets and funds available to be distributed among the Holders
of the Series A Preferred Stock and Parity Securities shall be insufficient to
permit the payment to such Holders of the full preferential amounts due to the
Holders of the Series A Preferred Stock and the Parity Securities, respectively,
then the entire assets and funds of the Company legally available for
distribution shall be distributed among the Holders of the Series A Preferred
Stock and the Parity Securities, pro rata, based on the respective liquidation
amounts to which each such series of stock is entitled by the Company's
Certificate of Incorporation and any certificate(s) of designation relating
thereto.
(b) Upon the completion of the distribution required by
subsection 4(a), if assets remain in this Company, they shall be distributed to
holders of Junior Securities in accordance with the Company's Certificate of
Incorporation including any duly adopted certificate(s) of designation.
(c) At each Holder's option, a sale, conveyance or disposition
of all or substantially all of the assets of the Company or the effectuation by
the Company of a transaction or series of related transactions in which more
than fifty percent (50%) of the voting power of the Company is disposed of shall
be deemed to be a liquidation, dissolution or winding up within the meaning of
this Section 4; provided further that an event described in the prior clause
that the Holder does not elect to treat as a liquidation and a consolidation,
merger, acquisition, or other business combination of the Company with or into
any other company or companies shall not be treated as a liquidation,
dissolution or winding up within the meaning of this Section 4, but instead
shall be treated pursuant to Section 5(f) hereof.
(d) In the event that, immediately prior to the closing of a
transaction described in Section 4(c) which would constitute a liquidation
event, the cash distributions required by Section 4(a) or Section 6 have not
been made, the Company shall either: (i) cause such closing to be postponed
until such cash distributions have been made, or (ii) cancel such transaction,
in which event the rights of the Holders of Series A Preferred Stock shall be
the same as existing immediately prior to such proposed transaction.
Section 5. Conversion. The record Holders of this Series A Preferred
Stock shall have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each record Holder of Series A Preferred
Stock shall be entitled (at the times and in the amounts set forth below) and
subject to the Company's right of redemption set forth in Section 6(a), at the
office of the Company or any transfer agent for the Series A Preferred Stock
(the "Transfer Agent"), to convert (in multiples of one (1) share of Preferred
Stock) as follows: (x) up to one-third (1/3) of the shares of Series A Preferred
Stock initially issued to such Holder at any time beginning sixty (60) days
following the date of the last closing of a purchase and sale of Series A
Preferred Stock that occurs pursuant to the offering of the Series A Preferred
Stock by the Company (the "Last Closing Date") and at any time thereafter, (y)
up to an additional one-third (1/3) of the shares of Series A Preferred Stock
initially issued to such Holder at any time beginning ninety (90) days following
the Last Closing Date and at any time thereafter, and (z) all remaining Series A
Preferred Stock held by such Holder at any time beginning one hundred twenty
(120) days following the Last Closing Date (each of the time periods referenced
in subclauses (x), (y) and (z) is hereinafter referred to singularly as a
"Conversion Gate") at the office of the Company or any Transfer Agent for the
Series A Preferred Stock, into that number of fully-paid and non-assessable
shares of Common Stock of the Company calculated in accordance with the
following formula (the "Conversion Rate"):
Number of shares issued upon conversion of one (1) share of Series A
Preferred Stock =
(.08) (N/365) (10,000) + 10,000
-------------------------------
Conversion Price
2
<PAGE>
where,
* N= the number of days between (i) the date that, in connection with
the consummation of the initial purchase by Holder of shares of Series A
Preferred Stock from the Company, the escrow agent first had in its
possession funds representing full payment for the shares of Series A
Preferred Stock for which conversion is being elected, and (ii) the
applicable Date of Conversion (as defined in Section 5(c)(iv) below) for
the shares of Series A Preferred Stock for which conversion is being
elected, and
* Conversion Price = the lesser of (x) $ 7.75 (the "Fixed Conversion
Price"), or (y) 85% of the average Closing Bid Price, as that term is
defined below, of the Company's Common Stock for the ten (10) trading
days immediately preceding the Date of Conversion, as defined below (the
"Variable Conversion Price").
For purposes hereof, the term "Closing Bid Price" shall mean the closing
bid price on the Nasdaq Small Cap Market, or if no longer traded on the Nasdaq
Small Cap Market, the closing bid price on the principal national securities
exchange or the National Market System on which the Common Stock is so traded
and if not available, the mean of the high and low prices on the principal
national securities exchange or the National Market System on which the Common
Stock is so traded.
(b) Mechanics of Conversion. In order to convert Series A
Preferred Stock into full shares of Common Stock, the Holder shall (i) fax, on
or prior to 11:59 p.m., Phoenix, Arizona time (the "Conversion Notice Deadline")
on the date of conversion, a copy of the fully executed notice of conversion
("Notice of Conversion") to the Company at the office of the Company or its
designated transfer agent (the "Transfer Agent") for the Series A Preferred
Stock stating that the Holder elects to convert, which notice shall specify the
date of conversion, the number of shares of Series A Preferred Stock to be
converted, the applicable conversion price and a calculation of the number of
shares of Common Stock issuable upon such conversion (together with a copy of
the front page of each certificate to be converted) and (ii) surrender to a
common courier for delivery to the office of the Transfer Agent, the original
certificates representing the Series A Preferred Stock being converted (the
"Preferred Stock Certificates"), duly endorsed for transfer; provided, however,
that the Company shall not be obligated to issue certificates evidencing the
shares of Common Stock issuable upon such conversion unless either the Preferred
Stock Certificates are delivered to the Transfer Agent as provided above, or the
Holder notifies the Company or its Transfer Agent that such certificates have
been lost, stolen or destroyed (subject to the requirements of subparagraph (i)
below). Upon receipt by Company of a facsimile copy of a Notice of Conversion,
Company shall immediately send, via facsimile, a confirmation of receipt of the
Notice of Conversion to Holder which shall specify that the Notice of Conversion
has been received and the name and telephone number of a contact person at the
Company whom the Holder should contact regarding information related to the
Conversion. In the case of a dispute as to the calculation of the Conversion
Rate, the Company shall promptly issue to the Holder the number of Shares that
are not disputed and shall submit the disputed calculations to its outside
accountant via facsimile within three (3) days of receipt of Holder's Notice of
Conversion. The Company shall cause the accountant to perform the calculations
and notify Company and Holder of the results no later than ninety-six (96) hours
from the time it receives the disputed calculations. Accountant's calculation
shall be deemed conclusive absent manifest error.
(i) Lost or Stolen Certificates. Upon receipt by the
Company of evidence of the loss, theft, destruction or mutilation of any
Preferred Stock Certificates representing shares of Series A Preferred Stock,
and (in the case of loss, theft or destruction) of indemnity or security
reasonably satisfactory to the Company, and upon surrender and cancellation of
the Preferred Stock Certificate(s), if mutilated, the Company shall execute and
deliver new Preferred Stock Certificate(s) of like tenor and date. However,
Company shall not be obligated to re-issue such lost or stolen Preferred Stock
Certificates if Holder contemporaneously requests Company to convert such Series
A Preferred Stock into Common Stock.
(ii) Delivery of Common Stock Upon Conversion. Subject
to paragraph 5(b) hereof, no later than the close of business on the second
(2nd) business day (the "Deadline") after receipt by the Company or the Transfer
Agent of a facsimile copy of a Notice of Conversion and receipt by Company or
the Transfer Agent of all necessary documentation duly executed and in
3
<PAGE>
proper form required for conversion, including the receipt by the Transfer Agent
of the original Preferred Stock Certificates to be converted (or after provision
for security or indemnification in the case of lost or destroyed certificates,
if required), the Company shall or shall cause the Transfer Agent to (as
applicable) issue and surrender to a common courier for either overnight or (if
delivery is outside the United States) two (2) day delivery to the Holder at the
address of the Holder as shown on the stock records of the Company a certificate
for the number of shares of Common Stock to which the Holder shall be entitled
as aforesaid.
(iii) No Fractional Shares. If any conversion of the
Series A Preferred Stock would create a fractional share of Common Stock or a
right to acquire a fractional share of Common Stock, such fractional share shall
be disregarded and the number of shares of Common Stock issuable upon
conversion, in the aggregate, shall be the next lower number of shares.
(iv) Date of Conversion. The date on which conversion
occurs (the "Date of Conversion") shall be deemed to be the date set forth in
such Notice of Conversion, provided (i) that the advance copy of the Notice of
Conversion is faxed to the Company before 11:59 p.m., Phoenix, Arizona time, on
the Date of Conversion, and (ii) that the original Preferred Stock Certificates
representing the shares of Series A Preferred Stock to be converted are
surrendered by depositing such certificates with a common courier, as provided
above, and received by the Transfer Agent within five (5) business days after
the Date of Conversion. The person or persons entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all purposes as
the record Holder or Holders of such shares of Common Stock on the Date of
Conversion. If the original Preferred Stock Certificates representing the Series
A Preferred Stock to be converted are not received by the Transfer Agent within
five (5) business days after the Date of Conversion or if the facsimile of the
Notice of Conversion is not received by the Company or its designated Transfer
Agent prior to the Conversion Notice Deadline, the Notice of Conversion, at the
Company's option, may be declared null and void.
(c) Reservation of Stock Issuable Upon Conversion. The Company
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the Series A Preferred Stock, such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all then outstanding
Series A Preferred Stock; and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the conversion
of all then outstanding shares of Series A Preferred Stock, the Company will
take such corporate action as may be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose.
(d) Automatic Conversion. Subject to the Company's right of
redemption set forth in Section 6 hereof, each share of Series A Preferred Stock
outstanding on the date which is three (3) years after the Last Closing Date
automatically shall be converted into Common Stock on such date at the
Conversion Rate then in effect (calculated in accordance with the formula in
Section 5(a) above), and the date which is three (3) years after the Last
Closing Date shall be deemed the Date of Conversion with respect to such
conversion.
(e) Adjustment to Conversion Rate.
(i) Adjustment to Fixed Conversion Price Due to Stock
Split, Stock Dividend, Etc. If, prior to the conversion of all of the Series A
Preferred Stock, the number of outstanding shares of Common Stock is increased
by a stock split, stock dividend, or other similar event, the Fixed Conversion
Price shall be proportionately reduced, or if the number of outstanding shares
of Common Stock is decreased by a combination or reclassification of shares, or
other similar event, the Fixed Conversion Price shall be proportionately
increased.
(ii) Adjustment to Variable Conversion Price. If, at any
time when any shares of the Series A Preferred Stock are issued and outstanding,
the number of outstanding shares of Common Stock is increased or decreased by a
stock split, stock dividend, or other similar event, which event shall have
taken place during the reference period for determination of the Conversion
Price for any conversion of the Series A Preferred Stock, then the Variable
Conversion Price shall be
4
<PAGE>
calculated giving appropriate effect to the stock split, stock dividend,
combination, reclassification or other similar event for all five (5) trading
days immediately preceding the Date of Conversion.
(iii) Adjustment Due to Merger, Consolidation, Etc. If,
prior to the conversion of all Series A Preferred Stock, there shall be any
merger, consolidation, exchange of shares, recapitalization, reorganization, or
other similar event, as a result of which shares of Common Stock of the Company
shall be changed into the same or a different number of shares of the same or
another class or classes of stock or securities of the Company or another entity
or there is a sale of all or substantially all the Company's assets or there is
a change of control transaction not deemed to be a liquidation pursuant to
section 4(c), then the Holders of Series A Preferred Stock shall thereafter have
the right to receive upon conversion of Series A Preferred Stock, upon the basis
and upon the terms and conditions specified herein and in lieu of the shares of
Common Stock immediately theretofore issuable upon conversion, such stock,
securities and/or other assets which the Holder would have been entitled to
receive in such transaction had the Series A Preferred Stock been converted
immediately prior to such transaction, and in any such case appropriate
provisions shall be made with respect to the rights and interests of the Holders
of the Series A Preferred Stock to the end that the provisions hereof
(including, without limitation, provisions for the adjustment of the Conversion
Price and of the number of shares issuable upon conversion of the Series A
Preferred Stock) shall thereafter be applicable, as nearly as may be practicable
in relation to any securities thereafter deliverable upon the exercise hereof.
The Company shall not effect any transaction described in this subsection
5(e)(iii) unless (a) it first gives thirty (30) business days prior notice of
such merger, consolidation, exchange of shares, recapitalization,
reorganization, or other similar event (during which time the Holder shall be
entitled to convert its shares of Series A Preferred Stock into Common Stock)
and (b) the resulting successor or acquiring entity (if not the Company) assumes
by written instrument the obligations of the Company under this Certificate of
Designation including this subsection 5(e)(iii).
(iv) No Fractional Shares. If any adjustment under this
Section 5(e) would create a fractional share of Common Stock or a right to
acquire a fractional share of Common Stock, such fractional share shall be
disregarded and the number of shares of Common Stock issuable upon conversion
shall be the next lower number of shares.
Section 6. Redemption by Company.
(a) Company's Right to Redeem Upon Receipt of Notice of
Conversion. If the Conversion Price of the Company's Common Stock is less than
the Fixed Conversion Price (as defined in Section 5(a)), at the time of receipt
of a Notice of Conversion pursuant to Section 5, the Company shall have the
right, in its sole discretion, to redeem in whole or in part any Series A
Preferred Stock submitted for conversion, immediately prior to and in lieu of
conversion ("Redemption Upon Receipt of Notice of Conversion"). If the Company
elects to redeem some, but not all, of the Series A Preferred Stock submitted
for conversion, the Company shall redeem from among the Series A Preferred Stock
submitted by the various Holders for conversion on the applicable date, a
pro-rata amount from each such Holder so submitting Series A Preferred Stock for
conversion.
(i) Redemption Price Upon Receipt of a Notice of
Conversion. The redemption price per share of Series A Preferred Stock under
this Section 6(a) shall be calculated in accordance with the following formula
("Redemption Rate"):
[[(.08)(N/365) (10,000)] + 10,000] x Closing Bid Price on Date of Conversion
---------------------------------------
Conversion Price
where,
"N", "Date of Conversion", "Closing Bid Price" and "Conversion Price"
shall have the same meanings as defined in Section 5.
(ii) Mechanics of Redemption Upon Receipt of Notice of
Conversion. The Company shall effect each such redemption by giving notice of
its election to redeem, by facsimile,
5
<PAGE>
by 5:00 p.m. New York City time the next business day following receipt of a
Notice of Conversion from a Holder, and the Company shall provide a copy of such
redemption notice by overnight or two (2) day courier, to (A) the Holder of the
Series A Preferred Stock submitted for conversion at the address and facsimile
number of such Holder appearing in the Company's register for the Series A
Preferred Stock and (B) the Company's Transfer Agent. Such redemption notice
shall indicate whether the Company will redeem all or part of the Series A
Preferred Stock submitted for conversion and the applicable redemption price.
(b) Company's Right to Redeem at its Election. At any time,
commencing twelve (12) months and one (1) day after the Last Closing Date, the
Company shall have the right, in its sole discretion, to redeem ("Redemption at
Company's Election"), from time to time, any or all of the Series A Preferred
Stock; provided (i) Company shall first provide thirty (30) business days
advance written notice as provided in subparagraph 6(b)(ii) below (which can be
given beginning thirty (30) business days prior to the date which is twelve (12)
months and one (1) day after the Last Closing Date), and (ii) that the Company
shall only be entitled to redeem Series A Preferred Stock having an aggregate
Stated Value (as defined below) of at least One Million Five Hundred Thousand
Dollars ($1,500,000). If the Company elects to redeem some, but not all, of the
Series A Preferred Stock, the Company shall redeem a pro-rata amount from each
Holder of the Series A Preferred Stock.
(i) Redemption Price At Company's Election. The
"Redemption Price At Company's Election" shall be calculated as a percentage of
Stated Value, as that term is defined below, of the Series A Preferred Stock
redeemed pursuant to this Section 6(b), which percentage shall vary depending on
the date of Redemption at Company's Election (as defined below), and shall be
determined as follows:
Date of Notice of Redemption at Company's Election % of Stated Value
-------------------------------------------------- -----------------
12 months and 1 day to 18 months following Last Closing Date 130%
18 months and 1 day to 24 months following Last Closing Date 125%
24 months and 1 day to 30 months following Last Closing Date 120%
30 months and 1 day to 36 months following Last Closing Date 115%
For purposes hereof, "Stated Value" shall mean the Original Series A
Issue Price (as defined in Section 4(a)) of the shares of Series A Preferred
Stock being redeemed pursuant to this Section 6(b), together with the accrued
but unpaid Premium (as defined in Section 4(a)).
(ii) Mechanics of Redemption at Company's Election. The
Company shall effect each such redemption by giving at least thirty (30)
business days prior written notice ("Notice of Redemption At Company's
Election") to (A) the Holders of the Series A Preferred Stock selected for
redemption, at the address and facsimile number of such Holder appearing in the
Company's Series A Preferred stock register and (B) the Transfer Agent, which
Notice of Redemption At Company's Election shall be deemed to have been
delivered three (3) business days after the Company's mailing (by overnight or
two (2) day courier, with a copy by facsimile) of such Notice of Redemption At
Company's Election. Such Notice of Redemption At Company's Election shall
indicate (i) the number of shares of Series A Preferred Stock that have been
selected for redemption, (ii) the date which such redemption is to become
effective (the "Date of Redemption At Company's Election") and (iii) the
applicable Redemption Price At Company's Election, as defined in subsection
(b)(i) above. Notwithstanding the above, Holder may convert into Common Stock
pursuant to section 5, prior to the close of business on the Date of Redemption
at Company's Election, any Series A Preferred Stock which it is otherwise
entitled to convert, including Series A Preferred Stock that has been selected
for redemption at Company's election pursuant to this subsection 6(b); provided,
however, that the Company shall still be entitled to exercise its right to
redeem upon receipt of a Notice of Conversion pursuant to section 6(a).
(c) Company Must Have Immediately Available Funds or Credit Facilities.
The Company shall not be entitled to send any Redemption Notice and begin the
redemption procedure under Sections 6(a) and 6(b) unless it has:
(i) the full amount of the redemption price in cash,
available in a demand or other immediately available account in a bank or
similar financial institution; or
6
<PAGE>
(ii) immediately available credit facilities, in the
full amount of the redemption price with a bank or similar financial
institution; or
(iii) an agreement with a standby underwriter willing to
purchase from the Company a sufficient number of shares of stock to provide
proceeds necessary to redeem any stock that is not converted prior to
redemption; or
(iv) a combination of the items set forth in (i), (ii)
and (iii) above, aggregating the full amount of the redemption price.
(d) Payment of Redemption Price.
(i) Each Holder submitting Preferred Stock being
redeemed under this Section 6 shall send their Series A Preferred Stock
Certificates so redeemed to the Company or its Transfer Agent, and the Company
shall pay the applicable redemption price to that Holder within ten (10)
business days of the Date of Redemption at Company's Election. The Company shall
not be obligated to deliver the redemption price unless the Preferred Stock
Certificates so redeemed are delivered to the Company or its Transfer Agent, or,
in the event one (1) or more certificates have been lost, stolen, mutilated or
destroyed, unless the Holder has complied with Section 5(b)(i).
(ii) If Company elects to redeem pursuant to Section
6(a) hereof, and Company fails to pay Holder the redemption price within the
time frame as required by this Section 6(d), then Company shall issue shares of
Common Stock to any such Holder who has submitted a Notice of Conversion in
compliance with Section 5(b) hereof. The shares to be issued to Holder pursuant
to this provision shall be the number of shares determined using a Conversion
Price that equals the lesser of (i) the Conversion Price on the date Holder
sends its Notice of Conversion to Company or Transfer Agent via facsimile or
(ii) the Conversion Price on the date the Transfer Agent issues Common Stock
pursuant to this Section 6(d)(ii).
(iii) Notwithstanding the foregoing, in the event that
the certificates evidencing the Series A Preferred Stock redeemed are not
delivered to the Transfer Agent as provided herein, the redemption of the Series
A Preferred Stock pursuant to this Section 6 shall still be deemed effective as
of the Date of Redemption.
(e) Blackout Period. Notwithstanding the foregoing, the Company
may not either send out a redemption notice or effect a redemption pursuant to
Section 6(b) above during a Blackout Period (defined as a period during which
the Company's officers or directors would not be entitled to buy or sell stock
because of their holding of material non-public information), unless the Company
shall first disclose the non-public information that resulted in the Blackout
Period; provided, however, that no redemption shall be effected until at least
ten (10) days after the Company shall have given the Holder written notice that
the Blackout Period has been lifted.
Section 7. Advance Notice of Redemption.
(a) Holder's Right to Elect to Receive Notice of Cash Redemption
by the Company. Holder shall have the right to require Company to provide
advance notice stating whether the Company will elect to redeem Holder's shares
of Series A Preferred Stock in cash, pursuant to the Company's redemption rights
discussed in Section 6(a).
(b) Mechanics of Holder's Election Notice. Holder shall send
notice ("Election Notice") to the Company and such other person(s) as the
Company may designate, via facsimile, stating Holder's intention to require
Company to disclose that if Holder were to exercise his, her or its right of
conversion (pursuant to Section 5) whether Company would elect to redeem a
specific number of shares of Holder's Series A Preferred Stock for cash in lieu
of issuing Common Stock. Company is required to disclose to Holder what action
Company would take over the subsequent twenty (20) business day period,
including the date of such Election Notice, as further discussed in subsection
7(c).
7
<PAGE>
(c) Company's Response. Upon receipt by the Company of a
facsimile copy of an Election Notice, Company shall immediately send, via
facsimile, a confirmation of receipt of the Election Notice to Holder, which
shall specify that the Election Notice has been received and the name and
telephone number of a contact person at the Company whom the Holder should
contact regarding information related to the requested advance notice.
Thereafter, the Company must respond by the close of business on the next
business day following receipt of Holder's Election Notice (1) via facsimile and
(2) by depositing such response with an overnight or two (2) day courier. The
Company's response must state whether it would redeem the shares, in whole or in
part, or allow conversion into shares of Common Stock without redemption. If
Company does not respond to Holder within one (1) business day via facsimile and
overnight or two (2) day courier, Company shall be required to issue to Holder
Common Stock upon Holder's conversion within the subsequent twenty (20) business
day period of Holder's Election Notice. However, if the Company's Common Stock
price decreases so that under the Conversion Rate Company would be required to
issue more than an additional ten percent (10% ) of shares of Common Stock than
Holder was entitled to receive at the time Holder sent Company its Election
Notice and if the Conversion Price is below the Fixed Conversion Price, then
Company shall no longer be bound to convert Holder's Preferred Stock into Common
Stock but may elect to redeem for cash.
Section 8. Voting Rights. The Holders of the Series A Preferred Stock
shall have no voting power whatsoever, except as otherwise provided by the
Arizona Business Corporation Act ("Arizona Law"), and no Holder of Series A
Preferred Stock shall vote or otherwise participate in any proceeding in which
actions shall be taken by the Company or the shareholders thereof or be entitled
to notification as to any meeting of the shareholders.
Notwithstanding the above, Company shall provide Holder with
notification of any meeting of the shareholders regarding any major corporate
events affecting the Company. In the event of any taking by the Company of a
record of its shareholders for the purpose of determining shareholders who are
entitled to receive payment of any dividend or other distribution, any right to
subscribe for, purchase or otherwise acquire any share of any class or any other
securities or property (including by way of merger, consolidation or
reorganization), or to receive any other right, or for the purpose of
determining shareholders who are entitled to vote in connection with any
proposed sale, lease or conveyance of all or substantially all of the assets of
the Company, or any proposed liquidation, dissolution or winding up of the
Company, the Company shall mail a notice to Holder, at least ten (10) days prior
to the board meeting scheduled for the purpose of voting on such dividend,
distribution, right or other event, and a brief statement regarding the amount
and character of such dividend, distribution, right or other event to the extent
known at such time.
To the extent that under Arizona Law the vote of the Holders of the
Series A Preferred Stock, voting separately as a class, is required to authorize
a given action of the Company, the affirmative vote or consent of the Holders of
at least a majority of the shares of the Series A Preferred Stock represented at
a duly held meeting at which a quorum is present or by written consent of a
majority of the shares of Series A Preferred Stock (except as otherwise may be
required under Arizona Law) shall constitute the approval of such action by the
class. To the extent that under Arizona Law the Holders of the Series A
Preferred Stock are entitled to vote on a matter with holders of Common Stock,
voting together as one (1) class, each share of Series A Preferred Stock shall
be entitled to a number of votes equal to the number of shares of Common Stock
into which it is then convertible using the record date for the taking of such
vote of stockholders as the date as of which the Conversion Price is calculated.
Holders of the Series A Preferred Stock also shall be entitled to notice of all
shareholder meetings or written consents with respect to which they would be
entitled to vote, which notice would be provided pursuant to the Company's
by-laws and applicable statutes.
Section 9. Protective Provision. So long as shares of Series A Preferred
Stock are outstanding, the Company shall not without first obtaining the
approval (by vote or written consent, as provided by Arizona Law) of the Holders
of at least sixty-six and two-thirds percent (66 2/3%) of the then outstanding
shares of Series A Preferred Stock, and at least sixty-six and two-thirds
percent (66 2/3%) of the then outstanding Holders:
(a) alter or change the rights, preferences or privileges of the
Series A Preferred Stock or any Senior Securities so as to affect adversely the
Series A Preferred Stock; provided,
8
<PAGE>
however, that no such change may be approved at any time on or prior to the
fortieth (40th) day following the Last Closing Date unless such change is
unanimously approved by all Holders;
(b) create any new class or series of stock having a preference
over or on parity with the Series A Preferred Stock with respect to
Distributions (as defined in Section 2 above) or increase the size of the
authorized number of Series A Preferred; or
(c) do any act or thing not authorized or contemplated by this
Designation which would result in taxation of the holders of shares of the
Series A Preferred Stock under Section 305 of the Internal Revenue Code of 1986,
as amended (or any comparable provision of the Internal Revenue Code as
hereafter from time to time amended).
In the event Holders of at least sixty-six and two-thirds percent (66
2/3%) of the then outstanding shares of Series A Preferred Stock and at least
sixty-six and two-thirds percent (66 2/3%) of the then outstanding Holders agree
to allow the Company to alter or change the rights, preferences or privileges of
the shares of Series A Preferred Stock, pursuant to subsection (a) above, so as
to affect the Series A Preferred Stock, then the Company will deliver notice of
such approved change to the Holders of the Series A Preferred Stock that did not
agree to such alteration or change (the "Dissenting Holders") and Dissenting
Holders shall have the right for a period of thirty (30) business days to
convert pursuant to the terms of this Certificate of Designation as they exist
prior to such alteration or change (notwithstanding the sixty (60) day, ninety
(90) day, and one hundred twenty (120) day holding requirements set forth in
Section 5(a) hereof), or continue to hold their shares of Series A Preferred
Stock provided, however, that the Dissenting Holders may not convert anytime on
or before the fortieth (40th) day following the Last Closing Date.
Section 10. Status of Converted or Redeemed Stock. In the event any
shares of Series A Preferred Stock shall be converted or redeemed pursuant to
Section 5 or Section 6 hereof, the shares so converted or redeemed shall be
canceled, shall return to the status of authorized but unissued Preferred Stock
of no designated series, and shall not be issuable by the Company as Series A
Preferred Stock.
Section 11. Preference Rights. Nothing contained herein shall be
construed to prevent the Board of Directors of the Company from issuing one (1)
or more series of Preferred Stock with dividend and/or liquidation preferences
junior to the dividend and liquidation preferences of the Series A Preferred
Stock.
The undersigned, under penalties of perjury, acknowledge that the Certificate is
his or her act and deed or the act and deed of the Company and that the facts
stated in the Certificate are true.
Signed on June 14, 1996
Signature: /s/ James L. Copland
-----------------------
Name: James L. Copland
----------------------------
Title: President
---------------------------
Attest:
/s/ Timothy J. Stocker
- -------------------------
Timothy J. Stocker, Secretary
9
EXHIBIT 4.4
0271
SEE REVERSE
FOR CERTAIN DEFINITIONS
AND RESTRICTIVE LEGENDS
SC&T
INTERNATIONAL, INC.
SC&T INTERNATIONAL, INC.
SERIES A PREFERRED STOCK
INCORPORATED UNDER THE LAWS OF THE STATE OF ARIZONA
1000 SHARES OF SERIES A PREFERRED STOCK ($0.01) PAR VALUE)
AUTHORIZED
THIS CERTIFIES THAT
Is The Owner of
Shares of Fully Paid and Non-Assessable Series A Preferred Stock
($0.01 Par Value) of
SC&T INTERNATIONAL, INC.
transferable only on the books of the Corporation in person or by duly
authorized attorney upon surrender of this certificate properly endorsed. This
certificate is not valid unless countersigned by the Transfer Agent.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
/s/ Timothy J. Stocker /s/ J.L. Copland
Secretary President
SC&T INTERNATIONAL, INC.
INCORPORATED
June 23,
1993
* Arizona *
COUNTERSIGNED:
American Securities Transfer & Trust, Inc.
P.O. Box 1596
Denver, Colorado 80201
By SIGNATURE ILLEGIBLE
-----------------------------
Transfer Agent & Registrar Authorized Signature
<PAGE>
SC&T INTERNATIONAL, INC.
The following abbreviations when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
The Corporation will furnish to any shareholder upon request and
without charge, a full statement of the designations, preferences, limitations,
and relative rights of the shares of each class authorized to be issued.
<TABLE>
<S> <C>
TEN COM -as tenants in common UNIF GIFT MIN ACT- Custodian
TEN ENT -as tenants by the entireties ------------------
JT TEN -as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants under Uniform Gifts to Minors
in common Act
-------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
________________________________________________________________________________
For Value Received,___________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------
| |
- -------------------------------
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
_______________________________________________________________________________
__________________________________________________________________________Shares
of the Series A Preferred Stock represented by the within Certificate, and do
hereby irrevocably constitute and appoint
________________________________________________________________attorney-in-fact
to transfer the said stock on the books of the within-named Corporation, with
full power of substitution in the premises.
Dated _____________________
____________________________________________________________
____________________________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME(S) AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
Signature(s) Guaranteed:
______________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(Banks, Stockbrokers, Savings and Loan associations and Credit Unions with
membership in an approved signature guarantee Medallion Program), pursuant to
S.E.C. Rule 17Ad-15.
EXHIBIT 10.10
EXCLUSIVE
---------
DISTRIBUTION AGREEMENT
----------------------
This Distribution Agreement is made and entered into as of this 29th
day of December, 1995, by and between HOME ARCADE SYSTEMS, INC., a California
corporation ("Home Arcade"), and SC&T2 INTERNATIONAL, INC., an Arizona
corporation ("SC&T").
RECITALS
--------
A. Home Arcade manufactures and sells products. Home Arcade's products
include a steering wheel for use on video arcade games. The steering wheels, as
well as any modifications thereto, are hereinafter referred to as the
"Products."
B. Home Arcade desires to engage SC&T as the exclusive distributor of
the Products to customers throughout the Territory, as hereinafter defined.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. Appointment of SC&T. Subject to and in accordance with the terms and
conditions of this Agreement, Home Arcade appoints SC&T as the sole exclusive
distributor of the Products for Home Arcade in the Territory during the term of
this Agreement, and SC&T accepts such appointment and agrees to act as the
exclusive distributor of the Products in the Territory.
2. Territory. SC&T's area of responsibility shall be the territory
described in Schedule A attached hereto (the "Territory"). Home Arcade will
promptly forward to SC&T all leads and inquiries, from and subsequent to
December 15, 1995, with respect to the Products received by Home Arcade from
entities located in the Territory including, without limitation, prior customers
of Home Arcade.
3. Ordering Procedures. All orders of the Products pursuant to this
Agreement shall be subject to the terms and conditions set forth in this
Agreement, notwithstanding the terms specified in any purchase order. Whenever
SC&T desires to purchase any of the Products, it shall give to Home Arcade, at
least 15 days prior to the desired shipping date of such Products, a signed
written purchase order specifying the quantities and product numbers of the
Products desires to be purchased and, in the case of any Products to be shipped
directly to any customer of SC&T, the name and a shipping address of such
customer and the name and telephone number of a contact person at such customer.
Orders shall be deemed to be accepted by Home Arcade upon receipt unless, within
48 hours after receipt of an order, Home Arcade gives SC&T written notice of
non-acceptance.
<PAGE>
4. Purchase Price. The initial purchase price for each unit of any
Product shall be the per unit purchase price for that product set forth on
Schedule B attached hereto, as amended or superseded from time to time as
provided herein. Home Arcade shall decrease the respective per unit purchase
prices for any or all Products as manufacturing costs drop so as to maintain the
gross profit margins of both SC&T and Home Arcade by written notice to SC&T.
Home Arcade may increase prices only if the direct cost of materials or
construction increase, in which case Home Arcade shall give SC&T at least 90
days' prior written notice of all price increases. The parties shall review
prices of Products approximately every 90 days during the term of this
agreement, in good faith, to ensure the prices remain proportionate to gross
profit margins received by SC&T and Home Arcade. SC&T's price for any Product
shall be the lower of the price on the date Home Arcade receives the order for
that Product, or the date the Product is shipped.
5. Pricing and Responsibility for Costs. All prices for the Products to
be sold hereunder are and shall be prices F.O.B. to SC&T's facility in Phoenix,
Arizona (the "Facility"). Products will be shipped in full truckload quantities
unless Home Arcade does not have products sufficient to meet such requirement
which will cause a partial shipment to be made to meet SC&T's order
requirements. The F.O.B. prices shall be determined in accordance with the
provisions of Section 4 hereof. All Products shall be packaged by Home Arcade as
necessary for protection against normal handling. In the absence of a separate
"ship to" designation on an acknowledgment of Home Arcade of a purchase order,
Home Arcade is authorized to ship the order to SC&T at SC&T's address. With
respect to any Products shipped to any addresses other than the Facility, SC&T
shall be responsible for (or shall receive a credit for, as the applicable case
may be) the difference in freight costs, actually incurred and the cost to ship
the same Products to the Facility. Upon each shipment of the Products, Home
Arcade shall notify SC&T of the shipment within 24 hours after shipment.
6. Payment of Home Arcade. Except as otherwise expressly agreed in
writing by Home Arcade, payment for the Products shall be made in United States
dollars in an amount adequate to cover the full purchase price plus all other
charges, if any, incurred by Home Arcade for the account of SC&T, and shall be
due and payable within 30 days after the shipping date of such Products.
7. Warranty. Home Arcade warrants that for the period of 12 months
after delivery of the Products (the "Warranty Period"), the Products (a) will,
when delivered, conform to the description on the face of SC&T's purchase order
relating to such Products, and (b) will be free of defects in design, materials
and workmanship. Home Arcade shall, at SC&T's option, replace (F.O.B. the
Facility), or issue a credit or refund to SC&T for, any nonconforming Products,
provided that both (i) SC&T furnishes to Home Arcade written notice, in
reasonable detail, of the nonconformity of the Products within the Warranty
Period, and (ii) if Home Arcade requests, SC&T delivers the Products claimed to
be nonconforming to Home Arcade, within 20 days after the notification by SC&T
pursuant to subsection (i) above. A new Warranty period shall be established
pursuant to this Section for any replaced products. This warranty shall extend
to SC&T's customers.
2
<PAGE>
8. Duties of SC&T. Home Arcade shall exercise no control over the
management and operation of SC&T, and, except as otherwise set forth herein,
SC&T shall have full discretion as to the price charged, marketing techniques
used, resale, method of payment accepted and all other facets of its
distribution business, including, without limitation, the selection and control
of any persons or entities through which it may elect to conduct sales.
9. Representations and Warranties of SC&T. SC&T represents, warrants
and agrees that it is a corporation duly organized, validly existing and in good
standing under the laws of the State of Arizona, with the full right, power and
authority, corporate or otherwise, to purchase, own and sell the products and to
carry on its business as it is now being conducted and as intended to be
conducted in accordance with this Agreement. The execution and delivery of this
Agreement, the timely consummation of the transactions contemplated hereby and
the full and timely fulfillment of the terms hereof have been duly and validly
authorized by all necessary action on the part of SC&T, and this Agreement
constitutes the legal, valid and binding obligation of SC&T, enforceable against
SC&T in accordance with its terms.
10. Representations and Warranties of Home Arcade. Home Arcade
represents, warrants and agrees that it is a corporation duly organized, validly
existing and in good standing under the laws of the State of California, with
the full right, power and authority, corporate or otherwise, to sell and own the
Products and to carry on its business as it is now being conducted and as
intended to be conducted in accordance with this Agreement. The execution and
delivery of this Agreement, the timely consummation of the transactions
contemplated hereby and the full and timely fulfillment of the terms hereof have
been duly and validly authorized by all necessary action on the part of Home
Arcade, and this Agreement constitutes the legal, valid and binding obligation
of Home Arcade, enforceable against Home Arcade in accordance with its terms.
11. Assurance of Home Arcade. Home Arcade shall use its best efforts to
manufacture, sell and deliver the Products to SC&T in sufficient quantities to
meet the requirements of SC&T, provided, however, that Home Arcade shall be
excused for any failure to satisfy such requirements of SC&T in the event of any
force majeure or the effects thereof, pursuant to Section 22 hereof.
12. Technical Support. Home Arcade shall provide to SC&T technical
support with respect to the Products. SC&T shall provide, by telephone, during
SC&T's normal working hours, reasonable technical support to its customers.
13. Trademarks, Trade Names and Corporate Names. The use of any party's
trademarks, symbols, trade names, corporate names or other intellectual property
rights by the other party shall inure to owner's benefit and shall not give the
other party any proprietary rights therein.
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14. Nondisclosure and Limited Use of Confidential or Proprietary
Information. Each party shall refrain from disclosing to any third parties, or
using for any purpose, any operating, product marketing or sales management
information or other confidential or proprietary information, including, without
limitation, information as to the other party's customers, obtained from the
other party pursuant to this Agreement or the relationship established
hereunder; and each party shall cause its employees and agents to refrain from
disclosing to any third parties, or using for any purpose, any such confidential
or proprietary information. Each party shall limit its use of such confidential
or proprietary information received hereunder to the purposes of this Agreement.
Notwithstanding anything to the contrary contained herein, SC&T shall be
entitled to solicit any customers for the Products for sale of any other product
produced or distributed by SC&T.
15. Advertising and Promotion. SC&T shall not publish or permit to be
published any advertising relating to the Products that is likely to mislead or
deceive the public or to impair the goodwill of Home Arcade the reputation of
the Products. Nonetheless, SC&T shall have the right to advertise and to promote
the Products by any reasonable means including telephone, mail, newspaper,
magazine, radio and television. Home Arcade has prepared and expects to continue
to develop certain sales materials regarding the Products, and shall, from time
to time, make these materials available to SC&T. If SC&T uses Home Arcade's
sales materials, it shall do so only in connection with sales of the Products
and upon the termination of this Agreement shall promptly cease using the same
and shall immediately return to Home Arcade any and all such sales materials
(including all copies thereof and excerpts therefrom). From time to time Home
Arcade may elect to participate in certain advertising and/or promotional costs
if agreed to between the parties.
16. Packaging. Between the effective date of this Agreement and the
date when Home Arcade's existing packaging is depleted, Home Arcade shall put a
sticker on the packaging of all Products stating that Home Arcade Products are
exclusively distributed in the United States, Canada and Europe by SC&T2
International, Inc. Such sticker shall also include SC&T's Arizona and Belgium
phone numbers and all addresses. Stickers for existing packaging will be
supplied by SC&T. All new packaging ordered by Home Arcade shall include on it
such information in a prominent place.
17. Publicity. Home Arcade shall not issue any press release or make
any public statement regarding the transactions contemplated hereby, including
but not limited to a press release or public statement announcing the execution
of this Agreement or any orders of Product hereunder, without the prior written
approval of SC&T.
18. Projections. SC&T makes no, and shall make no projections with
respect to the sales of the Products. No orders or statements by SC&T shall be
deemed to constitute a projection.
19. Term of Agreement. The term of this Agreement shall commence on the
date first above written and shall continue until January 1, 1998 and for
another two year term thereafter unless terminated sooner in accordance with the
provisions hereof.
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20. Termination
(a) Either party may terminate this Agreement with appropriate
cause upon 45 days prior written notice to the other.
(b) If either party fails to perform any of its obligations to
timely pay or ship under this Agreement, the other party may defer payments,
shipments or receipt of deliveries until the default is cured. If the default is
not cured within 30 days after the giving of written notice thereof to the
defaulting party, at the option of the nondefaulting party, this Agreement shall
terminate at the end of the 30 day period.
(c) If either party hereto becomes or is adjudicated insolvent
or bankrupt, or if a receiver or trustee is appointed for a party or its
property, or if a petition for reorganization or arrangement under any
bankruptcy or insolvency law regarding a party is approved, or if any assignment
is made for the benefit of a party's creditors, or if a party files a voluntary
petition in bankruptcy or a petition or answer seeking to take advantage of any
insolvency or bankruptcy law, then, in addition to such other remedies as may be
available in law or equity, the other party shall have the right to terminate
this Agreement on five days' prior notice.
(d) Notwithstanding any other provisions in this Agreement,
for a period of six months following the termination of this Agreement for any
reason whatsoever, other than a termination by Home Arcade pursuant to
subsection (c) above, Home Arcade shall pay to SC&T, within 30 days after the
shipment of any Products to any entity to which SC&T had sold Product during the
term of this Agreement as it may have been extended from time to time, whether
on a wholesale or retail basis, an amount per Product equal to the average gross
profit for such Product earned by SC&T during the three month period immediately
prior to the effective date of termination for all sales of such Product.
21. Post-Termination Deliveries and Repurchases. Within 30 days after
the termination of this Agreement, SC&T at its option, may sell to Home Arcade,
and Home Arcade may repurchase, any or all of the Products in SC&T's possession
that SC&T has not previously contracted to sell to a third party or have been
returned (including, without limitation, RMA returns). If SC&T elects to sell
any or all of such Products to Home Arcade, Home Arcade shall pay to SC&T,
SC&T's purchase price for the Products repurchased by Home Arcade, less any
monies due to Home Arcade under this Agreement.
22. Force Majeure. Neither SC&T nor Home Arcade shall be responsible
for any loss or damage resulting from any delay or failure in performing any
provision of this Agreement if the delay or failure results from: (1)
transportation shortages, inadequate supply of labor, material or energy, or the
voluntary foregoing of the right to acquire or use of any of the foregoing in
order to accommodate or comply with the orders, requests, regulations,
recommendations or instructions of any government or any department or agency
there; (2) compliance with any law, ruling, order, regulation, requirement or
instruction of any government or any department or agency thereof; (3) acts of
God; or (4) fires, strikes, labor
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troubles, embargoes, war or riot. Any delay resulting from any of such causes
shall extend performance accordingly or excuse performance in whole or in part,
as may be necessary.
23. Independent Contractor. SC&T and Home Arcade each acknowledges and
agrees that SC&T is an independent contractor and that under this Agreement
neither SC&T nor Home Arcade shall be considered for any purpose to be the
agent, partner, franchisor, franchisee or joint venturer of the other. Nor shall
Home Arcade or SC&T have any obligation or responsibility to act on behalf of or
in the name of the other, or the power or authority to bind the other in any
manner whatsoever. Any representation to the contrary by SC&T or by Home Arcade,
or the employees or agents of either, shall be sufficient grounds for the
termination of this Agreement.
24. Indemnification. Each party hereto shall indemnify, defend and hold
the other, its officers, directors, shareholders, employees, agents and
representatives harmless for, from and against any claims, losses, costs,
damages, expenses or liabilities to third parties, including, without
limitation, any governmental agencies (including, without limitation, reasonable
attorneys' fees) arising out of or resulting from the performance or
nonperformance by the indemnifying party of any obligation or agreement of the
indemnifying party under this Agreement, or any misrepresentation or a breach of
warranty made in this Agreement, or in connection with the performance of its
duties hereunder, by the indemnifying party, whether intentional or
unintentional. In addition, Home Arcade shall indemnify, defend and hold SC&T
and its officers, directors, shareholders, employees, agents and representatives
harmless for, from and against any claims, losses, costs, damages, expenses or
liabilities to third parties, including, without limitation, any governmental
agencies (including, without limitation, reasonable attorneys' fees) arising out
of or resulting from the Products, including any product liability or warranty
claims, etc. Notwithstanding anything contained herein to the contrary, this
indemnification shall survive the termination of this Agreement.
25. Insurance. During the term of this Agreement and any extensions
thereof, Home Arcade shall obtain and maintain general liability and products
liability insurance from an insurance company reasonably, satisfactory to SC&T
in amounts reasonably satisfactory to SC&T, but in no event less than an
aggregate amount of $1,000,000. Upon the request of SC&T, Home Arcade shall
promptly provide SC&T with a certificate of insurance. SC&T shall be a named
insured on all such insurance policies of Home Arcade, and each such insurance
policy shall require the insurer to give SC&T 30 days written notice prior to
cancelling the policy. Any insurance premiums paid by SC&T on behalf of Home
Arcade shall be immediately reimbursed by Home Arcade to SC&T at 110% of the
amount paid by SC&T.
26. Right of First Refusal.
(a) In the event that Home Arcade should develop any products
in addition to the Products, prior to granting any distribution rights to any
third party or parties, Home Arcade shall offer the distribution rights to SC&T.
In the event that SC&T rejects the
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terms of distribution offered by Home Arcade, prior to entering into any sales,
marketing, licensing, or distribution arrangement with any third party or
parties, Home Arcade shall deliver to SC&T a bona fide written offer from such
third party or parties to enter into any such sales marketing, licensing, or
distribution arrangement. Thereafter, SC&T shall have 30 days to advise Home
Arcade, in writing, that it, or its designee, shall enter into such arrangement
for the same price and on the same terms as set forth in the offer.
(b) Prior to selling all or substantially all of the stock or
assets of Home Arcade to a third party or parties, Home Arcade shall, or shall
cause its shareholders, to deliver to SC&T a bona fide written offer from such
third party or parties. Thereafter, SC&T shall have 30 days to advise Home
Arcade, in writing, that it, or its designee shall purchase the stock or assets,
as the case may be, for the same price and on the same terms as set forth in the
offer.
27. General Provisions
(a) Further Assurances. Each of the parties hereto shall
execute and deliver all such other instruments and take all such actions as
either party may reasonably request from time to time in order to effectuate the
purposes of this Agreement and the transactions provided for herein.
(b) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received when delivered
against receipt, or twelve hours after being sent by fax, or 5 days after being
sent by registered or certified mail, postage prepaid, return receipt requested,
addressed to the recipient's address as set forth below:
SC&T(2) International, Inc.
3837 East Lasalle Street
Phoenix, Arizona 85040
Fax No.: (602) 470-1507
Attention: President
Home Arcade Systems, Inc.
19414 Village Drive
Sonora, California 95370
Fax No.: (209) 532-1981
Attention: President
Either party may alter the address to which communications are to be sent by
giving notice of the change of address in conformity with the provisions of this
paragraph for the giving of notice.
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(c) Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and except
for any assignments by SC&T to related entities, or through a merger or
acquisition of SC&T, shall not be assigned by either party without the prior
written consent of the other.
(d) Entire Agreement; Amendment. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof, and supersedes and is in lieu of all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any course
of performance or usage of the trade inconsistent with any of the terms hereof.
(e) Controlling Law; Exclusive Jurisdiction and Venue. This
Agreement and all questions relating to its validity, interpretation,
performance and enforcement, shall be governed by and construed, interpreted and
enforced in accordance with the law of the state of Arizona, notwithstanding any
Arizona or other conflict-of-laws provisions to the contrary. The parties agree
that any action brought by either party against the other arising out of or in
connection with this Agreement, or the rights or obligations hereunder shall be
instituted properly in a United States Federal Court or State Court of competent
jurisdiction with venue only in the County of Maricopa, State of Arizona, or in
the Federal District Court of Arizona, and each party agrees to submit
personally to the jurisdiction thereof.
(f) Indulgences Not Waivers. Neither the failure not any delay
on the party of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
(g) Provisions Severable. The provisions of this Agreement are
independent of and severable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(h) Numbers of Days. In computing the numbers of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays in the State of Arizona; provided, however, that if the
final day of any time period falls on a Saturday, Sunday or holiday, then the
final day shall be deemed to be the first day that is not a Saturday, Sunday or
holiday.
(i) Construction. The parties hereto acknowledge and agree
that each party has participated in the drafting of this Agreement and has had
the opportunity to
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have this document reviewed by the respective legal counsel for the parties
hereto and that the rule of construction to the effect that any ambiguities are
to be resolved against the drafting party will not be applied to the
interpretation of this Agreement. No inference in favor of, or against any party
shall be drawn from the fact that one party has drafted any portion hereof.
(j) Amendment. This Agreement may only be amended or modified
by written agreement signed by both of the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their proper and duly authorized officers as of the
date first above written.
SC&T(2) INTERNATIONAL, INC.
By: (Signature not legible)
Its: Vice President of Finance
HOME ARCADE SYSTEMS, INC.
By: (Signature not legible)
Its: President
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SCHEDULE A
TERRITORY
The Territory shall include the United States and all of its
territories and possessions, Canada and Europe. In addition, SC&T shall be the
exclusive distributor of the Products to all entities that intend to use or sell
any of the Products in the Territory and any other territories that may be
agreed upon by the parties during the term of this Agreement including any
extensions thereof.
Home Arcade shall, by written notice, grant to SC&T the right of first
refusal to enter into an exclusive distribution agreement in any country or
territory not included above that SC&T has established a distribution base, as
agreed by both parties, sufficient to properly distribute products to that
market prior to granting any entity other than SC&T the right to distribute said
products. The terms and conditions will be substantially similar to the terms
and conditions agreed to by Home Arcade and the third party entity.
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SCHEDULE B
PURCHASE PRICES
SC&T pricing schedule:
Product Per Unit Pricing*
------- -----------------
SEGA $35.50
SNES $35.50
PCIBM $35.50
SONY To be determined
*Prices subject to adjustment pursuant to paragraph 4 of this Agreement.
11
EXHIBIT 10.11
EXCLUSIVE PURCHASE AND MANUFACTURING AGREEMENT
AND AMENDMENT TO DISTRIBUTION AGREEMENT
This Purchasing and Manufacturing agreement (this "Agreement") is made
and entered into as of the 19th day of March, 1996, by and between HOME ARCADE
SYSTEMS, INC., a California corporation ("Home Arcade"), and SC&T INTERNATIONAL,
INC., an Arizona corporation ("SC&T").
RECITALS
A. Home Arcade designs, develops, manufactures and sells products. Home
Arcade's products include a steering wheel and racing pedal for use on video
arcade games. The steering wheels and racing pedals designed and developed by
Home Arcade are described more particularly on Exhibit A hereto, and are
hereinafter referred to as the "Products".
B. Pursuant to that certain Distribution Agreement dated December 29,
1995, Home Arcade engaged SC&T as the exclusive distributor of the steering
wheel included within the Products to customers throughout the Territory, as
therein defined (the "Distribution Agreement").
C. Home Arcade desires to sell to SC&T the sole, exclusive, worldwide
right to manufacture the Products, as well as the tools and materials necessary
to do so.
D. Wherein any provisions of that certain Distribution Agreement dated
December 29, 1995 are in conflict with this Exclusive and Manufacturing
Agreement, this Agreement shall supersede such provisions.
E. This Agreement memorializes in writing all previous covenants,
agreement and understandings of the parties hereto.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. OWNERSHIP OF RIGHTS. To the best of Home Arcade's knowledge and
belief, Home Arcade is the sole originator,
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designer, developer and owner of all rights in and to the Products.
2. SALE OF MANUFACTURING RIGHTS AND EXISTING TOOLS AND MOLDS. Subject
to and in accordance with the terms and conditions of this agreement, Home
Arcade sells and transfers to SC&T, free and clear of all liens, claims and
encumbrances, the worldwide, sole, exclusive right, title, and interest in and
to the manufacture of the Products and in and to all tools, molds, and other
tangible items including, without limitation, drawings and specifications,
necessary to make the Products, as identified in Exhibit B hereto (collectively
the "Tools"), existing in connection therewith. During the term of this
Agreement, Home Arcade shall not manufacture any products or items similar to
the Products or Tools, nor shall Home Arcade, directly or indirectly, authorize,
encourage or condone such manufacture by any third parties.
3. AMENDMENT TO DISTRIBUTION AGREEMENT. The Distribution Agreement is
hereby amended such that the definition of Products therein is expanded to
include all items defined as Products in this Agreement, and to expand the
definition of Territory to be worldwide. Other than as set forth herein, the
parties hereto ratify and confirm the terms of the Distribution Agreement.
4. REPRESENTATIONS AND WARRANTIES OF HOME ARCADE.
(a) Home Arcade has good and marketable to, and rightful
possession of, all of the Tools, free and clear of any and all liens, mortgages,
pledges, security interests, restrictions, prior assignments, encumbrances and
claims of every kind and character. The tools are in a marketable condition and
are in good operating condition and in a state of good maintenance and repair.
The Tools are sufficient to produce all of the Products without any additions or
modifications thereto. Home Arcade further warrants that manufacture of the
Products by SC&T will not violate any third party rights or interests. There are
no suits, actions, claims, arbitrations, administrative or other proceedings or
governmental investigations pending or threatened against or affecting Home
Arcade, the Tools or the Products in any court or before any federal, state,
local or other governmental department or agency, and neither Home Arcade, nor
the Tools, nor the Products is or are subject to or directly affected by any
order, judgment, award, decree or ruling of any court or governmental agency.
Neither this agreement, including all exhibits hereto, nor any other document
furnished or delivered by Home Arcade to SC&T in connection with the
transactions contemplated hereby, to the best of Home Arcade's
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knowledge and belief, contains any untrue statement of material fact or, to the
best of Home Arcade's knowledge and belief, omits to state a material fact
required to be stated in order to make such statement, document or other
instrument not misleading. In addition to the foregoing, Home Arcade has not
failed to inform SC&T to any material fact relative to the Product or the tools.
(b) Home Arcade represents, warrants and agrees that it is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California, with the full right, power and authority corporate
or otherwise, to sell and own the Products and all rights connected therewith
and to carry on its business as it is now being conducted and is intended to be
conducted in accordance with this Agreement. The execution and delivery of this
Agreement, the timely consummation of the transactions contemplated hereby and
the full and timely fulfillment of the terms hereof have been duly and validly
authorized by all necessary action on the part of Home Arcade, and this
Agreement constitutes the legal, valid and binding obligation of Home Arcade,
enforceable against Home Arcade in accordance with its terms.
5. REPRESENTATION AND WARRANTIES OF SC&T. SC&T represents, warrants and
agrees that it is a corporation duly organized, validly existing and in good
standing under the laws of the State of Arizona, with the full right, power and
authority, corporate or otherwise, to manufacture, purchase, own and sell the
Products and to carry on its business as it is now being constructed and as
intended to be conducted in accordance with this Agreement. The execution and
delivery of this Agreement, the timely consummation of the transactions
contemplated hereby and the full and timely fulfillment of the terms hereof have
been duly and validly authorized by all necessary action on the part of SC&T,
and this Agreement constitutes the legal, valid and binding obligation of SC&T,
enforceable against SC&T in accordance with its terms. Neither this agreement,
including all exhibits hereto, nor any other document furnished or delivered by
SC&T to Home Arcade in connection with the transactions contemplated hereby, to
the best of SC&T's knowledge and belief, contains any untrue statement of
material fact, or to the best of SC&T's knowledge and belief, omits to state a
material fact required to be stated in order to make such statement, document or
other instrument not misleading.
6. PURCHASE PRICE
(a) SC&T agrees to pay a total of Sixty Thousand Dollars
($60,000) for the Tools as follows:
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(i) Fifteen Thousand Dollars ($15,000) upon signing
of this Agreement;
(ii) Five Thousand Dollars ($5,000) per month payable
upon the 15th day of each month commencing on May 15, 1996 and
ending January 15, 1997;
(b) For so long as SC&T manufactures any of the Products, with
respect to those Products manufactured, SC&T further agrees to pay for the
manufacturing rights granted hereunder as follows:
(i) A royalty of fifteen percent (15%) of the
manufacturing cost of each IBM PC, SNES, SEGA, and SONY
steering wheel Product, such royalty to be due and payable
within sixty (60) days of manufacturing of the Product and
shall not fall below Two Dollars and Twenty-five Cents ($2.25)
per IBM PC, SNES or SEGA steering wheel Product, with no
minimum royalty for SONY steering wheel Product;
(ii) A chip development fee of Twenty-five Cents
($.25) for each IBM steering wheel Product manufactured, and
only for IBM steering wheel Products, which shall be due and
payable within sixty (60) days of manufacturing of the
product, such payments to be made to Home Arcade Systems, Inc.
at 1543 Meridian Avenue, San Jose, California 95125;
(iii) A similar fee of Thirty-five cents ($.35) for
each SONY steering wheel Product manufactured, and only for
SONY steering wheel Products, which payments shall be due and
payable to Home Arcade Systems, Inc. at 1543 Meridian Avenue,
San Jose, California 95125 within sixty (60) days of
manufacturing of such products; and
(iv) A royalty fee of Ninety Cents ($.90) for each
set of racing pedals Product, payable to Home Arcade, such
royalty to be due and payable within Sixty (60) days of
manufacturing of this product.
(c) For the purpose of this Agreement, manufacturing costs
shall mean the actual manufacturing cost charged, per Product, to SC&T by the
manufacturing facility, as hereinafter defined.
7. NO ASSUMPTION OF LIABILITIES. Notwithstanding anything
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to the contrary set forth in this Agreement, SC&T does not and shall not be
deemed to have assumed any obligations or liabilities of Home Arcade whatsoever.
8. SUPPLY OF PRODUCTS TO HOME ARCADE. SC&T hereby agrees to manufacture
up to Three Thousand (3,000) 3DO steering wheel products for Home Arcade, at
SC&T's cost to manufacture such 3DO steering wheel products, plus customary
shipping, taxes and similar fees and costs. Orders by Home Arcade for 3DO
steering wheel products in excess of said Three Thousand (3,000) units and for
3DO pedals, will be priced at SC&T's cost of manufacture plus 15% with a minimum
of Two Dollars and Twenty-five Cents ($2.25) per unit plus customary shipping,
taxes and similar costs. No manufacture of products for Home Arcade will be
subject to payment of royalty to Home Arcade as provided for in Paragraph
5(b)(i) above. All orders for products by Home Arcade shall be subject to the
customary terms and conditions of SC&T purchase orders except that all payments
shall be due and payable at the time goods are prepared for shipment.
9. FINAL ORDER OF PRODUCT AND DELIVERY OF THE TOOLS. SC&T hereby orders
and Home Arcade hereby agrees to supply to SC&T per Purchase Order No. 00611
Five Thousand (5,000) units of SONY Play Station at a cost of Forty-one Dollars
and Fifty Cents ($41.50) each (the "Final Order"), such Final Order to be
completed no later than April 30, 1996. Upon completion of manufacture of the
Final Order, but in any event not later than April 9, 1996, Home Arcade shall
pack and crate the Tools for shipment to an offshore manufacturing facility to
be designated by SC&T (the "Manufacturing Facility"). Home Arcade shall package
and crate the Tools in a manner that is reasonable to ensure their safe delivery
to the designated manufacturing facility and to protect the Tools against
expected handling. SC&T will be responsible for arranging for the shipment of
the Tools and for the cost of shipment. Risk of loss with respect to the Tools
shall pass from Home Arcade to SC&T upon freight on board from San Carlos,
California.
10. BOOKS AND RECORDS. SC&T will keep full, complete and accurate books
of account and records covering all of its transactions relating to this
Agreement. Home Arcade will have the right, no more frequently than once per
calendar quarter, to examine all books of account, records, documents, and
material in SC&T's possession or under its control that relate directly to the
manufacture, use, and sale of the Products pursuant to this Agreement. Any
examination made in accordance with this Section 9 shall be made during SC&T's
regular business hours, on SC&T's premises, at Home Arcade's expense, and upon
Seven (7) days'
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prior written notice to SC&T.
11. TECHNICAL SUPPORT. Home Arcade undertakes and agrees to provide
SC&T with adequate sales training, technical support and marketing assistance,
as and when such is deemed necessary, and requested, by SC&T.
12. INFRINGEMENT BY THIRD PARTIES.
(a) Home Arcade shall promptly notify SC&T of any possible or
potential infringement by others of the Products, the Tools or the rights
granted to SC&T under this Agreement.
(b) Home Arcade shall notify SC&T promptly of any litigation
instituted by any entity against Home Arcade, relating to the Tools or Products.
SC&T, in SC&T's sole discretion and expense, may undertake the defense or
prosecution of any such litigation and Home Arcade shall execute any and all
documents and do such acts and things as may, in the opinion of SC&T or its
counsel, be necessary to carry out such defense or prosecution. Home Arcade, at
its own expense, may be represented in any such litigation by counsel of its own
selection. If SC&T fails, without reasonable grounds for such failure, to
initiate or complete litigation against an infringing third party after a demand
therefor by Home Arcade, then Home Arcade, may, but shall not be obligated at
its sole expense, to bring such action.
(c) Any damages awarded to SC&T or Home Arcade in any action
against an infringing third party pursuant to this Section 12(b) shall be the
property of SC&T, except that, if any portion of such damages are awarded;
(i) to Home Arcade based upon injury to its business
suffered by Home Arcade such portion shall be the property of
Home Arcade; and,
(ii) to Home Arcade pursuant to a lawsuit brought by
Home Arcade in accordance with Section 12(b) of this
Agreement, Home Arcade shall be entitled to retain from such
damage award, the expenses including attorneys' fees, incurred
by Home Arcade in bringing the lawsuit after SC&T has been
reimbursed any of its expenses including attorneys' fees
incurred in defending against an infringing third party.
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13. INFRINGEMENT OF RIGHTS OF THIRD PARTIES.
(a) Home Arcade shall promptly notify SC&T of any claim or
allegation by a third party that the manufacture or sale of the Products or the
use of the tools infringes any claim of such third party's patent or proprietary
property;
(b) SC&T, at its sole discretion, may defend and otherwise
respond to any claim or allegation by a third party that the manufacture of the
Products or use of the Tools infringes any claim of such third party's
proprietary property. Home Arcade shall, at its sole expense, furnish all
assistance reasonable for such defense by SC&T.
14. DUTIES OF SC&T. Home Arcade shall exercise no control over the
management and operation of SC&T, and, except as otherwise set forth herein,
SC&T shall have full discretion as to the manufacturing and marketing techniques
used, resale, method of payment accepted and all other facets of this
manufacturing and distribution business, including, without limitation, the
selection and control of any person or entities through which it may elect to
conduct manufacturing and sales.
15. NONDISCLOSURE AND LIMITED USE OF CONFIDENTIAL OR PROPRIETARY
INFORMATION. Each party shall refrain from disclosing to any third parties, or
using for any purpose, any operating, product marketing, manufacturing, product
design or sales management information or other confidential or proprietary
information with respect to the Tools or the Products; and each party shall
cause its employees and agents to refrain from disclosing to any third parties,
or using for any purpose, any such confidential or proprietary information. Each
party shall limit its use of such confidential or proprietary information
received hereunder to the purposes of this Agreement. Notwithstanding anything
to the contrary contained herein, SC&T shall be entitled to solicit any
customers for the products for sale of any other product produced or distributed
by SC&T.
16. SURVIVAL OF REPRESENTATION, WARRANTIES AND COVENANTS. Each of the
representations, warranties and covenants contained in this Agreement is true
and correct in all respects on the date hereof, and shall survive the
consummation of the transactions contemplated by this Agreement.
17. ASSURANCE OF HOME ARCADE. Home Arcade undertakes and agrees to
provide SC&T with all leads, inquiries, and orders it may receive subsequent to
March 15, 1996, for any of the products. Home Arcade shall deliver such
information to SC&T
7
<PAGE>
within Forty-eight (48) hours after receipt.
18. PUBLICITY. Home Arcade shall not issue any press release or make
any public statement regarding the transactions contemplated hereby, including
by not limited to a press release or public statement announcing the execution
of this Agreement or any orders of Product hereunder, without the prior written
approval of SC&T.
19. PROJECTIONS. SC&T makes no, and shall make no projections with
respect to the sales of the Products. No disclosure of third party orders or
statements by SC&T shall be deemed to constitute a projection.
20. TERM OF AGREEMENT. This Agreement shall terminate upon the earlier
of (a) Twenty (20) years after the date of this Agreement; or (b) the date that
SC&T ceases manufacturing any of the Products.
21. FORCE MAJEURE. Neither SC&T nor Home Arcade shall be responsible
for any loss or damage resulting from any delay or failure in performing any
provision of this Agreement if the delay or failure results from: (a)
transportation shortages, inadequate supply of labor, material or energy, or the
voluntary foregoing of the right to acquire or use of any of the foregoing in
order to accommodate or comply with the orders, requests, regulations,
recommendations or instructions of any government or any department or agency
thereof; (b) compliance with any law, ruling, order, regulation, requirement or
instruction of any government or any department or agency thereof; (c) acts of
God; or (d) fires, strikes, labor troubles, embargoes, war or riot. Any delay
resulting from any of such causes shall extend performance accordingly or excuse
performance in whole or in part, as may be necessary.
22. INDEPENDENT CONTRACTOR. SC&T and Home Arcade each acknowledges and
agrees that SC&T is an independent contractor and that under this Agreement
neither SC&T nor Home Arcade shall be considered for any purpose to be the
agent, partner, franchisor, franchisee or joint venturer of the other. Nor shall
Home Arcade or SC&T have any obligation or responsibility to act on behalf of or
in the name of the other, or the power or authority to bind the other in any
manner whatsoever. Any representation to the contrary by SC&T or by Home Arcade,
or the employees or agents of either, shall be sufficient grounds for the
termination of this Agreement.
23. INDEMNIFICATION. Each party hereto shall indemnify,
8
<PAGE>
defend and hold the other, its officers, directors, shareholders, employees,
agents and representative harmless for, from and against any claims, losses,
costs, damages, expenses or liabilities to third parties, including, without
limitation, any governmental agencies (including, without limitation, reasonable
attorney's fees) arising out of or resulting from the performance or
nonperformance by the indemnifying party of any obligation or agreement of the
indemnifying party under this Agreement, or any misrepresentation or breach of a
representation, covenant or warranty made in this Agreement, or in connection
with the performance of its duties hereunder, by the indemnifying party, whether
intentional or unintentional. In addition, SC&T and Home Arcade shall indemnify,
defend and hold each other harmless for, from and against any such claims,
losses, costs, damages, expenses or liabilities to third parties, including
without limitation, any governmental agencies from the products manufactured
solely by SC&T or solely by Home Arcade and/or sold by them in their respective
packaging, including any product liability or warranty claims of any kind, with
respect to the products manufactured by them, except that Home Arcade shall
defend any third party claims wherein such claims arise from allegations that
the manufacturing or sale of the Products or use of the Tools infringes any
claim of such third party's patent or proprietary property rights.
24. RIGHTS OF FIRST REFUSAL.
(a) In the event that Home Arcade should develop any products
in addition to the Products, prior to granting any distribution and/or
manufacturing rights to any third party or parties, Home Arcade shall offer the
distribution and/or manufacturing rights to SC&T or its designee. In the event
that SC&T rejects the terms of distribution and/or manufacturing offered by Home
Arcade, prior to entering into any sales, marketing, licensing, distribution, or
manufacturing arrangement with any third party or parties, Home Arcade shall
deliver to SC&T a bona fide written offer from such third party or parties to
enter into any such sales marketing, licensing, distribution, or manufacturing
arrangement. Thereafter, SC&T shall have thirty (30) days to advise Home Arcade,
in writing, that it, or its designee, shall enter into such arrangement for the
same price and on the same terms as set forth in the offer.
(b) Prior to selling all or substantially all of the stock or
assets of Home Arcade to a third party or parties, Home Arcade shall, or shall
cause its shareholders, to deliver to SC&T a bona fide written offer from such
third party or parties. Thereafter, SC&T shall have thirty (30) days to advise
Home
9
<PAGE>
Arcade, in writing, that it, or its designee shall purchase the stock or assets,
as the case may be, for the same price and on the same terms as set forth in the
offer.
25. BILL OF SALE. The Agreement is intended to, and shall be evidence
of, transfer of the Tools as provided for herein, and such transfer is made with
the representations and warranties provided for herein.
26. GENERAL PROVISIONS.
(a) Further Assurances. Each of the parties hereto shall
execute and deliver all such other instruments and take all such actions as
either party may reasonably request from time to time in order to effectuate the
purposes of this Agreement and the transactions provided for herein.
(b) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received when delivered
against receipt, or twelve (12) hours after being sent by fax, or five (5) days
after being sent by registered or certified mail, postage prepaid, return
receipt requested, addressed to the recipient's address as set forth below:
SC&T International, Inc.
3837 East LaSalle Street
Phoenix, Arizona 85040
Fax No. (602) 470-1507
Attention: President
Home Arcade Systems, Inc.
1543 Meridian Avenue
San Jose, CA 95125
Fax No. (408) 269-3316
Attention: President
Either party may alter the address to which communications are to be
sent by giving notice of the change of address in conformity with the provisions
of this paragraph for the giving of notice.
(c) Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and except
for any assignments by SC&T to related entities, or through a merger or
acquisition of SC&T, shall not be assigned by either party without the prior
written consent of
10
<PAGE>
the other, which shall not be unreasonably withheld.
(d) Entire Agreement. This Agreement, together with the
Distribution Agreement, contains the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof, and supersedes and
is in lieu of all prior and contemporaneous agreement, understanding,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof including without
limitation that certain Exclusive Purchase and Manufacturing Agreement and
Amendment to Distribution Agreement dated as of March 19, 1996 containing
various handwritten and faxed amendments thereto. The express terms hereof
control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof.
(e) Controlling Law; Exclusive Jurisdiction and Venue. This
agreement and all questions relating to its validity, interpretation,
performance and enforcement, shall be governed by and construed, interpreted and
enforced in accordance with the law of the state of Arizona, not withstanding
any Arizona or other conflict-of laws provisions to the contrary.
(f) Indulgences Not Waivers. Neither the failure not any delay
on the party or a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privileges preclude any other or
further exercise of the same or of any right, remedy, power or privilege, nor
shall any waiver of any right remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power of privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
(g) Provisions Severable. The provisions of this Agreement are
independent of and severable from each other, and no provisions shall be
affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in whole or
in part.
(h) Numbers of Days. In computing the numbers of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays in the State of Arizona; provided, however, that if the
final day of any time period falls on a Saturday, Sunday, or holiday, then the
final day shall be deemed to be the next day that is not a Saturday,
11
<PAGE>
Sunday or holiday.
(i) Construction. The parties hereto acknowledge and agree
that each party has participated in the drafting of this Agreement and has the
opportunity to have this document reviewed by the respective legal counsel for
the parties hereto and that the rule of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be applied to
the interpretation of this Agreement. No inference in favor of or against any
party shall be drawn from the fact that one party has drafted any portion
hereof.
(j) Amendment. This Agreement may only be amended or modified
by written agreement signed by both of the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their proper and fully authorized officers as of the
date first above written.
HOME ARCADE SYSTEMS, INC. SC&T INTERNATIONAL, INC.
By: (SIGNATURE NOT LEGIBLE) By: (SIGNATURE NOT LEGIBLE)
------------------------------- -------------------------------
Its: President Its: VP of Finance
------------------------------- -------------------------------
12
<PAGE>
EXHIBIT A
PRODUCTS
1. Sega Arcade Racing Wheel.
2. Super Nintendo Arcade Racing Wheel.
3. IBM PC Arcade Racing Wheel.
4. Sony Arcade Racing Wheel.
5. Pedals to all platforms except 3DO platforms.
13
<PAGE>
EXHIBIT B
TOOLS AND MOLDS
1. Tool for steering wheel mold.
2. Tool for console mold.
3. Tool for family mold.
4. Tool for bottom plate mold.
14
AGREEMENT BETWEEN PARTIES
This Agreement is made effective and entered into this 1st day
of October, 1996 by and between Phillips Motorsports, Inc., an Oregon
corporation, hereinafter referred to as ("Phillips"), and SC&T Racing
Enterprises Limited, an Arizona corporation, hereinafter referred to as ("SC&T
Racing").
WHEREAS Phillips runs, owns and operates a professional
formula Atlantic Team;
WHEREAS Phillips desires to compete in the 1997 Player's
Toyota Atlantic Series, and plan for the 1998 season before the final venue of
the 1997 season, and SC&T Racing desires to promote its name and products and
become a sponsor;
NOW THEREFORE, in consideration of the mutual covenants and
agreements between the parties and other good and valuable consideration, the
parties hereto agree as follows:
1) ENTRY
-----
Phillips agrees to send in the entry as early as possible to
maximize SC&T Racing's exposure in program printing, press
releases and any other official race public relations
documents. All press materials from Phillips must have pre-
approval by SC&T Racing prior to release. Press materials will
be on hand at each race venue.
2) CONTRIBUTION OF PARTIES
-----------------------
Phillips
--------
Phillips agrees to maintain, repair and replace, as necessary,
one (1) Ralt RT-41 Atlantic car and engines with electronic
fuel injection for approximately 48/50 days of testing and
racing. Said car shall be maintained race-ready and in
competitive condition with standards equal to or greater than
a performance rating equal to or greater than any of the other
top competitors in the Series. Phillips shall supply tires as
needed for the races and as needed for testing. Phillips shall
supply a minimum of two mechanics per car plus a team manager.
Phillips shall provide a sufficient number of qualified
mechanics and all other personnel required to maintain and
operate the car in good and attractive order, as well as all
other additional incidental equipment required to properly
support the car and its activities. Phillips' fees include
management, logistics, transportation, consulting,
preparation, car engineering and driver development, and also
pays for mechanics' lodging and all other expenses.
<PAGE>
Phillips will install eight (8) flags on the trailer in the
logo and colors of SC&T Racing.
Phillips will provide a hospitality area that will accommodate
up to 15 people. This area will be decorated with the logo and
colors of SC&T Racing. Food and beverage also will be provided
at each venue.
Phillips will reserve six (6) hotel rooms at each race venue
for SC&T Racing attendees. Payment for these rooms will be the
responsibility of SC&T Racing. Phillips also will identify a
key special events manager for SC&T Racing during the race
season as lead contact between Phillips and SC&T Racing.
It is the goal of the parties to make every effort possible to
win the race and the Series Championship. Phillips agrees to
show its due diligence at all times and make maximum effort to
provide the necessary equipment and team to accomplish this
goal.
Consideration
-------------
In consideration therefor, and provided Phillips is not in
default, SC&T Racing agrees to provide Phillips $605,000 (US)
for the 1997 season with payment as follows: $150,000 Deposit
of Intent, upon signing this agreement. The balance will be in
monthly payments due on the 5th day of the months as follows:
December, 1996 $100,000; January, 1997 $50,000; February, 1997
$50,000; March, 1997 $42,000; April, 1997 $42,000; May, 1997
$42,000; June, 1997 $42,000; July, 1997 $42,000; and the final
payment August 1997 of $45,000. All payments will be made by
bank transfer after the Deposit of Intent payment. There will
be no other expenses, liabilities, or charges to SC&T Racing
unless specifically contained herein or in a written agreement
signed by SC&T Racing. If, for any reason, Phillips is unable
to continue for the full racing season, the consideration will
be prorated as to the actual number of events run.
3) PRIZE MONEY
-----------
Phillips agrees that 10% of all prize money will be paid to a
charity as specified by and in the name of SC&T Racing. All
remaining prize monies and contingencies will go to Phillips
for distribution to team members and operating expenses as
deemed necessary.
4) SPONSORSHIP
-----------
In case of accident and/or health problems, Phillips will
choose a replacement driver, subject to the prior approval of
SC&T Racing. Both parties acknowledge
2
<PAGE>
that the sponsors belong to SC&T Racing, and Phillips agrees
not to solicit any of the sponsors in any way for a minimum
period of two years from the last date of SC&T Racing/Phillips
association. Should Phillips wish to add sponsorship to the
race car, or make any changes in the design and/or decoration,
it may be done only with SC&T Racing's express written
permission, and proceeds of such additional sponsorship shall
be split between SC&T Racing and Phillips as agreed. The
mechanics and other team participants will be required to wear
any and all sponsor names and clothing that may be required by
SC&T Racing and to have photographs utilized in any and all
advertising for SC&T Racing and its affiliates. Phillips will
provide twelve (12) uniforms and four (4) driver suits less
jackets and caps that will be provided by SC&T Racing. SC&T
Racing may procure more for promotional purposes at their
desire and cost. Phillips will not seek out or allow any
sponsor or provider of products or services that is deemed to
be in competition with SC&T Racing. SC&T Racing shall have the
right, at no expense and on a royalty-free basis, to use the
names and likenesses of Phillips in endorsements, commercial
advertising and promotions that shall include all forms of
media.
Phillips will make every effort to have the driver attend
autograph and photo sessions and selected SC&T Racing events.
Any and all direct expenses and per diem to attend the special
events for SC&T Racing are the responsibility of SC&T Racing.
Phillips will paint the tractor/trailer in the appropriate
colors and design of SC&T Racing. A show car and smaller
trailer also will be provided in the color and design of SC&T
Racing for use by SC&T Racing during the race season and in
the off season, which car will also be used as the back up
racing car.
Phillips shall have the uniforms, tractor/trailer and show car
and trailer finished for participation in the planned launch
scheduled for Las Vegas, Nevada the first week of January,
1997. The above costs are included in the 1997 racing budget
with the exception of room cost for the event.
5) CONFIDENTIALITY
---------------
All the terms of this contract shall be kept confidential by
both parties, their agents, employees, and principals, both
during and after the term of this contract, except that SC&T
Racing may copy its sponsor(s) if so required, and further
that SC&T Racing may disclose whatever its' attorneys deem
necessary to comply with all laws, including securities laws
disclosures.
3
<PAGE>
6) HOLD HARMLESS AGREEMENT
-----------------------
Phillips shall indemnify and hold harmless SC&T Racing, its
officers, directors, agents and employees, from all claims,
actions, suits, judgments, costs and fees, including counsel
fees, which arise from the acts and omissions of Phillips, its
agents, employees, or third parties under its control. The
indemnity provisions of this Agreement shall survive the
termination of this Agreement. Phillips shall furnish SC&T
Racing with releases signed by Phillips and all its personnel
connected with its performance of this Agreement in a form
acceptable to SC&T Racing. Phillips compliance with the
foregoing obligation shall be a condition precedent to the
enforcement of SC&T Racing's obligations hereunder.
7) RIGHT OF FIRST REFUSAL
----------------------
SC&T Racing has first right of refusal with Phillips and the
Driver for the 1998 season.
8) ASSIGNMENT/ENTIRE AGREEMENT
---------------------------
This Agreement may be assigned by SC&T Racing upon written
notification to Phillips to do so. Phillips may not assign or
transfer all or any rights under this Agreement without the
express written consent of SC&T Racing. This Agreement
contains the entire agreement between the parties and any
agreement hereafter to change, modify, discharge or affect the
terms of the Agreement in whole or in part, shall be made in
writing and signed by both parties. This Agreement shall be
construed and governed by the laws of the State of Arizona.
Litigation arising out of this Agreement, shall be conducted
only in the County of Maricopa, State of Arizona.
9) RACE DRIVER
-----------
Phillips agrees to provide a race driver and a backup
("Driver") who is or will be under exclusive written contract
with Phillips for this racing season, and a copy of such
contract shall be furnished to SC&T Racing.
10) SPECIAL RIGHT OF TERMINATION BY SPONSOR
---------------------------------------
Phillips agrees that SC&T Racing shall have the right to
terminate this Agreement, subject to the following terms and
conditions:
A. In the event that Phillips materially breaches this
Agreement, or materially defaults in the performance of any
obligation hereunder and does not remedy such
4
<PAGE>
breach or default within ten (10) days following written
notice from SC&T Racing specifying such breach or default,
SC&T Racing shall have the right to terminate this Agreement
forthwith; or
B. In the event that Phillips or its agents or the Driver
commit any act or are involved in any situation tending to
bring Phillips and/or SC&T Racing into public disrespect,
scandal, or ridicule, tending to shock or offend the
community, tending to derogate from the public image of SC&T
Racing or Phillips, or tending to reflect unfavorably upon
SC&T Racing or Phillips or any of their products or services,
then SC&T Racing shall have the right to terminate this
Agreement immediately upon notice given to Phillips.
C. In the event of the following: (i) the making by Phillips
of an assignment for the benefit of creditors; (ii) the
appointment of a trustee, receiver or similar officer of any
court for Phillips; or (iii) the institution of bankruptcy,
composition, reorganization, insolvency or liquidation
proceedings by or against Phillips without such proceedings
being dismissed within thirty (30) days from the date of the
institution thereof, SC&T Racing shall have the right to
terminate this Agreement.
11) RELEASE
-------
Phillips, for itself, its successors and assigns, jointly and
severally releases and forever discharges SC&T Racing, its
successors and assigns, its officers, shareholders, employees
and agents from any and every claim, demand, loss, damage
action or right of action, of whatever kind or nature, either
in law or in equity, arising from or by reason of any bodily
injury or personal injury known or unknown, death or property
damage that may occur as a result of participation in or
preparation for racing events, or any other activities in
connection therewith, whether the result of negligence or
otherwise. Phillips further agrees to obtain and keep on file,
releases from any and all members of the crew, whether
salaried, casual or volunteer workers. Neither Phillips, nor
any agent nor employee of Phillips, shall make any claim
against SC&T Racing with respect to any remuneration in the
nature of salary or otherwise or with respect to any cost,
damage, loss or expense incurred for any reason, including but
not limited to damage, injury or death which may be suffered
by Phillips, its agents, employees, third parties or any
property of Phillips.
12) THE NATURE OF THE RELATIONSHIP
------------------------------
The parties expressly understand and agree that Phillips is
acting as an independent contractor, unrelated to the SC&T
Racing. Phillips shall not have authority or right to bind
SC&T Racing contractually or otherwise. Nothing in this
Agreement is intended to create a relationship, express or
implied, of employer-employee or
5
<PAGE>
partnership between SC&T Racing and Phillips. Each party shall
be fully liable for Worker's Compensation premiums and
liability, Federal, State and local withholding taxes or
charges with respect to its respective employees and each
agrees to save the other harmless from any claims brought
against the other in respect thereto. For all purposes and
specifically with reference to the subject matter of the
Agreement, the parties shall be and act as independent
contractors, and under no circumstances shall this Agreement
be construed as one of agency, partnership, joint venture or
employment between the parties. Each party acknowledges and
agrees that it neither has nor will give the appearance or
impression of having any legal authority to bind or commit the
other party in any way.
13) TRADEMARKS
----------
The words "Platinum Sound," any and all SC&T Racing's brand
logos, labels, designs, product identification, decals and
artwork (referred to herein collectively as "SC&T Trademarks")
shall remain the property of SC&T Racing. SC&T Racing grants
to Phillips the right to use the above in accordance with the
provisions hereof, provided that such right is non-exclusive,
nonassignable, and nontransferable. Any and all rights under
trademark or copyright law or other property rights arising
from such use thereof shall inure to the sole benefit of SC&T
Racing. All pictures, prints, motion pictures, audio or visual
tapes, artists' renderings, plans, ideas, concepts and other
things which are made or prepared by or for SC&T Racing or its
agents in connection with its sponsorship of the Car shall be
and remain the exclusive property of SC&T Racing. SC&T Racing
shall have the right to obtain, register and otherwise perfect
sole and exclusive ownership of any of the aforementioned
items by means of copyright, trademark, service mark or other
proprietary means anywhere and at any time, and shall have the
right to use any such items in perpetuity in any manner, when
and where it may designate, without any claim on the part of
Phillips or any third party to any right of ownership or right
to additional compensation.
14) INSURANCE
---------
Phillips or qualified subcontractors shall provide SC&T Racing
with access to the standard liability insurance policies
provided by Event sponsors, having aggregate coverage limits
of no less than Ten Million Dollars ($10,000,000.00). These
policies will be extended to provide for SC&T Racing as an
named additional insured or other evidence reasonably
satisfactory to SC&T Racing that it is properly covered by
insurance. Phillips will provide SC&T Racing proof of
insurance by delivering copies of the declaration pages of all
applicable policies. Any change or cancellation in that policy
will require ten (10) days notice to SC&T Racing by Phillips.
Phillips shall also provide and maintain liability
6
<PAGE>
insurance on the tractor-trailer of not less than One Million
Dollars ($1,000,000.00) and provide evidence thereof to SC&T
Racing.
15) EXPENSES
--------
Except as otherwise expressly provided herein, each party will
be responsible for any expenses incurred by such party in
connection herewith.
16) TERMS
-----
This Agreement commences October 1, 1996 and runs through the
racing season to September 30, 1997; however, certain
marketing or promotional events may take place through
December 1997 and Phillips will participate as agreed upon
between the parties.
Executed on this 1st day of October, 1996.
PHILLIPS MOTORSPORTS, INC. SC&T RACING INTERNATIONAL, INC.
/s/ Pierre Phillips /s/ James L. Copland
- -------------------------- ---------------------------
Pierre Phillips, President James L. Copland, President
7
<TABLE>
<CAPTION>
ESCROW INSTRUCTIONS
<S> <C>
TRANSNATION TITLE INSURANCE COMPANY Escrow Number 96250331-
Phoenix NTS Escrow Officer Pam Hannappel
Phoenix, Arizona 85018 Phone 956-5568
Phoenix, Arizona August 16, 1996
THOMAS J. PAUL, INC., A PHILADELPHIA CORPORATION HEREIN CALLED SELLER whose address is 1061 Rydal
Rd., Rydal, PA 19046 Home Phone: FAX 215-576-5713 Business Phone: 215-886-3220
AND S C & T INTERNATIONAL, INC., HEREIN CALLED BUYER whose address is 3837 E. LaSalle St.,
Phoenix, AZ 85040
hereby employ Transnation Title Insurance Company to act as Escrow Agent in
connection with a sale by Seller to Buyer upon the following terms and
conditions which shall be complied with by said parties on or before *See
Attached*, 19__, except as otherwise specified herein. The property herewith
referred to is situated in Maricopa County, Arizona, and is described as
follows, to-wit: Lot 4, SCOTTSDALE AIRPARK
ALL ITEMS CHECKED THUS (x) ARE THE
SALES PRICE TO BE PAID BY BUYER $ 355,000.00 OBLIGATIONS WHICH EACH PARTY WILL PAY BUYER SELLER
Which is represented by: TAXES 1995 & prior x
ERNEST MONEY TO BE DEPOSITED IN 1996 & future x
ESCROW To be deposited in $ 50,000.00 Prorate to COE
accordance with attached* based on 1995 tax statement
CASH PAYMENT TO BE DEPOSITED IN IMPROVEMENT LIEN ASSESSMENTS
ESCROW O/B COE Cashiers' Ck Req $ if any, to be paid in full x
or wire transfer $ 305,000.00 future and/or proposed x
ENCUMBRANCE OF RECORD beginning Prorate to NONE
with payment due None with IRRIGATION PROJECT ASSESSMENTS
approximate Unpaid balance of $ 0.00 all due and delinquent, if any x
In full by seller all future and/or proposed x
Transfer fee All by Seller x
ENCUMBRANCE OF RECORD beginning Prorate to COE
with payment due None with HOMEOWNERS ASSESSMENTS
approximate unpaid balance of $ 0.00 none through this escrow
In full by Seller
Transfer fee NONE
Prorate to NONE
Any variation in amount of Encumbrance(s) FIRE INSURANCE POLICY x
shall be reflected in Net Applicable New Policy Furnished by Buyer
Any reserve funds held under said Encum- Prorate to NONE
brance(s) shall be Not Applicable MIP INSURANCE Prorate to NONE
INTEREST Prorate to NONE
BALANCE OF $ 0.00 RENTS Prorate to NONE
Evidenced By RECORDING FEES:
Disclosure: This disclosure is given pursuant to A.R.S. Deed
Section 6-841.03 to inform the buyer(s) and seller(s) Encumbrance x
of a residential dwelling that monies deposited into Release of Encumbrance x
escrow are not insured by the State of Arizona or the Affidavit of Value x
United States Government against loss due to fraud or
theft.
As follows: STATEMENT FEES/ x
*All terms and conditions are TRANSFER FEES x
accordance with the Attached COUNTEROFFER. HOME WARRANTY PLAN x
TERMITE INSPECTION & TREATMENT
AGENT'S COMMISSION 5% of SALES PRICE x
TO: 50% to Lee & Associates Az
(Robert R. Kling)
50% to Grubb & Ellis
(Mark P. Linsalata)
ESCROW CHARGES 1/2 1/2
TITLE POLICY INSURING
Owner Standard*/Extended** **x *x
Mortgagee or Beneficiary
ACCOUNT ACCEPTANCE FEE n/a n/a
ACCOUNT SERVICE FEE n/a n/a
PROCEEDS OF CASH PAYMENT SHALL BE PAID TO THE PERSONAL PROPERTY: If personal property is involved in
SELLER(S) HEREIN AS FOLLOWS: this escrow, escrow agent assumes no liability for transfer
Seller as their interests may appear of property nor any lien thereon or title thereto.
</TABLE>
THE PARTIES HEREBY ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE MATTERS
CONTAINED ON THE REVERSE SIDE OF THESE INSTRUCTIONS, INCLUDING BUT NOT LIMITED
TO PARAGRAPHS 8 THRU 11 INCLUSIVE, CONCERNING THE CANCELLATION OF THIS ESCROW,
AND PARAGRAPH 19 CONCERNING THE DEPOSITOR'S RIGHT TO EARN INTEREST ON DEPOSITED
FUNDS, ALL SAID MATTERS ARE INCORPORATED HEREIN.
SELLER BUYER
THOMAS J. PAUL, INC. S C & T INTERNATIONAL, INC.
- ---------------------------------- -----------------------------------------
BY: s/s Thomas J. Paul 8/19/96 s/s [SIGNATURE ILLEGIBLE] 8/19/96
- ---------------------------------- -----------------------------------------
Date Date
<PAGE>
SELLER AND BUYER AGREE THAT:
1. They will deposit with Escrow Agent the necessary documents to
complete the sale as established by the terms of these Instructions; they
authorize Escrow Agent to deliver or record said documents at the appropriate
time; all money payable shall be paid to Escrow Agent unless otherwise
specified; they authorize Escrow Agent to pay from funds held for said purpose,
amounts necessary to procur the documents and to pay charges and obligations
necessary to consummate this transaction; they authorize Escrow Agent to
complete fire insurance endorsement requests and deliver any policies on deposit
with Escrow Agent; and they authorize Escrow Agent to act upon any statement
furnished by a lien holder of his agent without liability to Escrow Agent.
2. They will pay all costs, damages, attorney's fees, and expenses,
which Escrow Agent may incur or sustain in connection with these instructions,
except as caused by the gross negligence of Escrow Agent.
3. When these instructions have been complied with, Escrow Agent shall
deliver by recording in the appropriate public office all necessary documents,
disburse all funds, and issue the title insurance policy.
4. These Escrow Instructions and any amendments, demands and/or
supplements thereto shall have no effect until signed by the Seller and Buyer
and delivered to Escrow Agent.
5. No instruction, demand, or notice shall be effective unless it is in
writing and signed by the party making said instruction, demand or notice.
Escrow Agent shall not be bound by, nor be obligated to act upon, any
instruction, demand, or notice not in writing and signed by said party.
6. They authorize Escrow Agent in the event of any conflicting demands
made upon it concerning these instructions, or this escrow, at its election, to
hold any money and documents deposited hereunder until it receives mutual
instructions by all parties or until a civil action shall have been finally
concluded in a Court of competent jurisdiction, determining the rights of all
parties. In the alternative, Escrow Agent may at its discretion at any time,
commence a civil action to interplead any conflicting demands to a Court of
competent jurisdiction to determine its rights and the rights of the parties to
this escrow. In accordance with paragraph two (2), the parties will pay to
Escrow Agent is expenses and attorneys' fees sustained in connection with the
civil action, and any appeal to determine its rights and the rights of the
parties to this escrow.
7. They grant to Escrow Agent the right to execute on behalf of the
Seller and buyer herein, the Affidavit of Value, using the total consideration
for the established value, unless instructed by Seller and Buyer to the
contrary.
8. Notwithstanding, the provisions contained in any Deposit Receipt and
Agreement, Real Estate Contract or Real Estate Sales Agreement executed by
Seller and Buyer, if Seller or Buyer elect to cancel these instructions because
of the failure of the other party to comply with any of the terms hereof within
the time limits provided herein, said party so electing to cancel shall deliver
to Escrow Agent a written notice to the other party and Escrow Agent demanding
that said other party comply with the terms hereof within thirteen days from the
receipt of said notice by Escrow Agent or that these instructions shall
thereupon become cancelled. If other party fails to comply, these instructions
shall be cancelled and Escrow Agent shall:
(a) Pay to the party electing to cancel, any earnest money
deposited, and pay all other money to the party who made the deposit, after
deducting cancellation fees and/or work charges due Transnation Title Insurance
Company, and any cancellation fees or statement fees due in connection with this
escrow.
(b) Return all documents to the party who delivered them into
escrow.
9. If, under these instructions, a commission is to be paid to a Real
Estate Broker, regardless of the provisions of paragraph eight (8a) above, then:
(a) The party obligated to pay the commission shall not
acquiesce in any mutual cancellation without approval of the Real Estate Broker.
(b) Upon the cancellation of the escrow should any funds
become payable to a party obligated hereunder to pay said commission, then
Escrow Agent shall pay to the Real Estate Broker therefrom, a sum equal to
one-half of the earnest money, but not more than the full amount of the
commission.
10. Escrow Agent shall within three days after receipt of any Notice,
demand or Declaration, send it to the party to whom it is directed by enclosing
a copy of said instrument in an envelope addressed to said party at the last
written address which said party shall have filed with Escrow Agent. If no
written address has been filed, the Notice shall be sent in care of General
Delivery, at the City in which the office of Escrow Agent is located as shown on
the first page of these instructions. The Notice shall be deposited in the
United States Mail. The mailing of any such instrument by Escrow Agent in the
manner herein provided shall constitute notice of the contents of such
instrument to the party to whom the instrument is directed as to the date of
such mailing and no further notice shall be required.
11. Escrow Agent will not accept payments under a cancellation notice,
unless the payments are paid by cash, or by certified check, cashier's check or
money order made payable to Transnation Title Insurance Company.
12. Should Escrow Agent be closed on day of compliance with these
instructions, the requirements may be met on the next succeeding day Escrow
Agent is open for business. "Close of Escrow" shall mean the day the documents
are recorded.
13. Escrow Agent shall be under no obligation to disburse any funds
until advised by the bank that the check or drafdt deposited has been honored.
In the event any check given byu Purchaser is subsequently dishonored, Seller
agrees to refund any remittance made to Seller by Escrow agent.
14. At anytime and in its sole discretion, Escrow Agent can resign as
Escrow Agent by sending written notice to all parties to the escrow. All money
and documents held by Escrow Agent will be returned to the party who delivered
them into escrow.
15. The title insurance provided for unless otherwise specified herein,
shall be evidenced by the standard form of Title Insurance Policy of Transnation
Title Insurance Company on file with the Insurance Director of the State of
Arizona.
16. The money deposited with Transnation Title Insurance Company in
connection with this escrow will be deposited into a noninterest bearing account
with a financial institution (the "funds depository") whose deposited are
covered by FDIC or FSLIC insurance. The parties further acknowledge that, in
calculating the amount of available insurance, the FDIC or FSLIC will
consolidate money deposited under this escrow with all other funds of the
undersigned, which are on deposit with the funds depository. Therefore, the
parties hereby release Transnation Title Insurance Company from any liability
and assume all responsibility for any loss which may result from a lack of FDIC
or FSLIC insurance in excess of $100,000. It is understood that Transnation
Title Insurance Company may make beneficial use of the funds deposited in this
escrow for services rendered by the funds depository.
17. There are some matters for which Transnation Title Insurance
Company assumes no liability, including but not limited to, unrecorded liens;
proposed improvement district liens or assessments; assessments of council of
co-owners or homeowners associations; personal property taxes; transfer of
personal property; utility charges; boundary lines; locations of improvements;
possession of property; compliance with zoning, building ordinances or building
restrictions; transfers or filings with the Arizona State Department of Water
Resources; reservations and exceptions in patents unless provided for in the
Title Insurance Policy and/or the Escrow Instructions.
18. In the event of any dispute between the Escrow Agent and any party
to the Escrow Instructions (said other party or parties hereinafter referred to
as the "adverse party") either party may demand arbitration pursuant to the
rules of the American Arbitration Association. Arbitrable matters include, but
are not limited to, any controversy or claim between the Escrow Agent and
adverse party arising out of or relating to the Escrow Instructions. All
arbitrable matters, when the amount in dispute is $50,000.00 or less, shall be
arbitrated at the option of either Escrow Agent or adverse party. All arbitrable
matters, when the amount in dispute is in excess of $50,000.00, shall be
arbitrated only when agreed to by both the Escrow Agent and the adverse party.
Arbitration pursuant to this Agreement is made under the rules in effect at the
date the demand for arbitration is made and shall be binding upon the parties to
the arbitration. The award may include attorney's fees. Judgment upon the award
rendered by the Arbitrator may be entered in any court having jurisdiction
thereof. The law of Arizona shall apply to an arbitration pursuant to this
paragraph.
19. If so instructed by Seller or Buyer, Escrow Agent will invest any
deposited funds in an interest bearing account established in the name of
Transnation Title as Escrow Agent. The depositing party has a right to earn
interest on any escrowed funds which are deposited in the interest bearing
account. A good faith estimate for interest earned on a typical investment
account with a federally insured institution is as follows: deposit of $1,000.00
at 5% per annum would pay approximately $4.17 per month, or at 6% per annum
would pay approximately $5.00 per month. The account may be established by
contacting the Escrow Agent at the telephone number or address listed on the
reverse side hereof and executing the Company's customary investment
instruction.
20. Pursuant to A.R.S. Section 44-317 Escrow Agent will charge a $25.00
service fee for the processing and administration coincidental with any
unclaimed funds. This one time $25.00 charge will be earned by the Company after
the Company has made a diligent effort to locate the party which includes
written notice.
<PAGE>
August 20, 1996
Escrow No. 96250331
Transnation Title Ins. Company
Phoenix NTS
4647 N. 32nd Street Suite 135
Phoenix, Arizona 85018
Contrary to the original Escrow Instructions dated August 16, 1996 the parties
hereby agree to the following changes:
Expiration of the Contingency Period: September 6th, 1996
and,
close of Escrow: September 23, 1996
(SIGNATURE NOT LEGIBLE) By: SIGNATURE NOT LEGIBLE)
---------------------------- ----------------------------
Thomas J. Paul, Inc. S C & T International, Inc.
<PAGE>
September 6, 1996
Escrow No. 96250331
To: Transnation Title Ins. Company
Phoenix NTS
4647 N. 32nd Street Suite 135
Phoenix, Arizona 85018
I/We Hereby Modify and/or Supplement the Previous Instructions in the Above
Numbered Escrow in the Following Particulars Only:
Upon an additional deposit in the amount of $25,000.00 expiration of the
Contingency Period will be extended to September 20, 1996.
All other terms and conditions of the Escrow and Offer remain the same.
Further, it is understood this supplement is in effect until 5:00 p.m., Friday,
September 6, 1996, at which point, if not accepted by the Seller, the
Escrow/Offer becomes null and void and all earnest money shall become completely
refundable.
(SIGNATURE NOT LEGIBLE) (SIGNATURE NOT LEGIBLE)
----------------------- ---------------------------
Thomas J. Paul, Inc. S C & T International, Inc.
EXHIBIT 21
LIST OF SUBSIDIARIES
SC&T Europe, NV
SC&T U.K., Ltd.
SC&T America, Inc.
SC&T Racing Enterprises Limited
