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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K/A
AMENDMENT NO. 1 TO
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER: 00-21315
ON COMMAND CORPORATION
(Exact Name of Registrant as specified in its charter)
DELAWARE 77-04535194
(State of Incorporation) (IRS Employer Identification No.)
6331 SAN IGNACIO AVENUE, SAN JOSE, CALIFORNIA 95119
(Address of Principal Executive Offices) (Zip code)
Registrant's telephone number, including area code: (408) 360-4500
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
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TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
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Common Stock NASDAQ National Market System
Series A Common Stock Purchase Warrants NASDAQ National Market System
Series B Common Stock Purchase Warrants NASDAQ National Market System
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SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: None
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.
The aggregate market value of the Registrant's Common Stock held by
non-affiliates of the Registrant as of March 3, 1999, was $125,407,368 based
upon a price of $9.625 per share, which was the average of the bid and asked
prices of such stock on March 3, 1999, as reported on the NASDAQ National Market
Reporting System. As of March 3, 1999, there were 30,169,752 shares of the
Registrant's Common Stock issued and outstanding and 1,424,875 Series A
Warrants, 2,625,000 Series B Warrants, and 3,450,000 Series C Warrants
(non-registered) issued and outstanding.
DOCUMENTS INCORPORATED BY REFERENCE The registrant's definitive proxy
statement with respect to its annual meeting of stockholders is incorporated by
reference herein.
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TABLE OF CONTENTS
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Item 14. Exhibits, Financial Statements, Schedules and 3
Reports on Form 8-K
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In the course of filing the original Form 10-K, Exhibit 3.4 was inadvertently
omitted from the filing. The purpose of this amendment is to file such exhibit.
Therefore, pursuant to Rule 12b-5, the complete text of Item 14 is set forth
below, but only the omitted exhibit is attached hereto.
Item 14. Exhibits, Financial Statements, Schedules and Reports on Form 8-K
(a)(1) FINANCIAL STATEMENTS
The following consolidated financial statements of On Command
Corporation are included in Item 8:
Independent Auditors' Report
Consolidated Balance Sheets at December 31, 1998 and 1997
Consolidated Statements of Operations for the years ended December 31,
1998, 1997 and 1996
Consolidated Statements of Stockholders' Equity for the years ended
December 31, 1998, 1997 and 1996
Consolidated Statements of Comprehensive Loss for the years ended
December 31, 1998, 1997 and 1996
Consolidated Statements of Cash Flows for the years ended December 31,
1998, 1997 and 1996
Notes to the Consolidated Financial Statements
Quarterly Results of Operations for the years ended December 31, 1998
and 1997
(a)(2) FINANCIAL STATEMENT SCHEDULES
The following consolidated financial statement schedule of On Command
Corporation is included:
Schedule II -- Valuation Accounts
Information required by the other schedules has been presented in the
Notes to the Consolidated Financial Statement or such schedule is not
applicable and, therefore, has been omitted.
(a)(3) EXHIBITS AND REPORTS ON FORM 8-K
(A) EXHIBIT
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EXHIBIT NO. DESCRIPTION
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3.1 Certificate of Amended and Restated Certificate of Incorporation of
On Command Corporation, which is incorporated by reference to Exhibit
3.1 of Form S-4.
3.3 Bylaws of On Command Corporation, which is incorporated by reference
to Exhibit 3.3 of Form S-4.
3.4 Amendment to Bylaws dated as of November 23, 1998.
4.1 Registration Rights Agreement by and among On Command Corporation and
the other parties named therein, which is incorporated by reference
to Exhibit 4.1 of Form S-4.
4.2 Warrant Agreement by and among On Command Corporation and the other
parties named therein, which is incorporated by reference to Exhibit
4.2 of Form S-4.
10.1 Master Services Agreement, dated as of August 3, 1993, by and between
Marriott International, Inc., Marriott Hotel Services, Inc. and On
Command Video Corporation (confidential treatment granted), which is
incorporated by reference to Form S-4, (Incorporated by reference to
Exhibit 10.6 of the Registration statement on Form S-1 (File No.
33-98502) of Ascent Entertainment Group, Inc.).
10.2 Hilton Hotels Corporation-On Command Video Agreement, dated April 27,
1993, by and between Hilton Hotels Corporation and On Command Video
Corporation, which is incorporated by reference to Exhibit 10.4 of
Form S-4 (confidential treatment granted).
10.3* Amended and Restated Employment Agreement between On Command
Corporation and Robert Kavner, dated as of December, 1998.
(previously filed)
10.4* Amendment to Employment Agreement between On Command Corporation and
Brian Steel, dated as of December 31, 1998. (previously filed)
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10.5* Employment and Consulting Agreement, dated November 20, 1991, between
Robert Snyder and On Command Video Corporation which is incorporated
by reference to Exhibit 10.9 of Form S-4.
10.6 Standard Lease, dated June, 1996, between Berg & Berg Developers, and
On Command Video Corporation (Incorporated by reference to Exhibit
10.10 of the Annual Report on Form 10-K for the year ended December
31, 1996 ("OCC 1996 Form 10-K")).
10.7 Corporate Agreement dated as of October 8, 1996, between On Command
Corporation and Ascent Entertainment Group, Inc. (Incorporated by
reference to Exhibit 10.22 of the Annual Report on Form 10-K for the
year ended December 31, 1996 at Ascent Entertainment Group, Inc.
(Commission File No. 0-27192)).
10.8* 1996 Key Employee Stock Plan (Incorporated by reference to Exhibit
10.13 of the OCC 1996 Form 10-K).
10.9* 1997 Employee Stock Purchase Plan (Incorporated by reference to
Exhibit 4(c) of Form S-8 filed August 8, 1997).
10.10* 1997 Non-Employee Directors Stock Plan (Incorporated by reference to
Exhibit 4(d) of Form S-8 filed August 8, 1997).
10.11 First Amended and Restated Credit Agreement dated as of November 24,
1997, between On Command Corporation and the Lenders Named Therein
and NationsBank of Texas, N.A. (previously filed)
10.12 Change of Control Severance Plan for Executive Officers. (previously
filed)
21.1 Subsidiaries of On Command Corporation. (previously filed)
23.1 Independent Auditors' Consent. (previously filed)
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* Indicates compensatory plan or arrangement.
(B) REPORTS
No reports on Form 8-K were filed during the quarter ended December 31,
1998.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY SAN JOSE,
STATE OF CALIFORNIA ON DECEMBER 16, 1999.
On Command Corporation
By: /s/ ARTHUR M. AARON
-----------------------------
Arthur M. Aaron
Acting General Counsel
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INDEX TO EXHIBITS
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Exhibit
Number Description
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3.1 Certificate of Amended and Restated Certificate of Incorporation of
On Command Corporation, which is incorporated by reference to Exhibit
3.1 of Form S-4.
3.3 Bylaws of On Command Corporation, which is incorporated by reference
to Exhibit 3.3 of Form S-4.
3.4 Amendment to Bylaws dated as of November 23, 1998.
4.1 Registration Rights Agreement by and among On Command Corporation and
the other parties named therein, which is incorporated by reference
to Exhibit 4.1 of Form S-4.
4.2 Warrant Agreement by and among On Command Corporation and the other
parties named therein, which is incorporated by reference to Exhibit
4.2 of Form S-4.
10.1 Master Services Agreement, dated as of August 3, 1993, by and between
Marriott International, Inc., Marriott Hotel Services, Inc. and On
Command Video Corporation (confidential treatment granted), which is
incorporated by reference to Form S-4, (Incorporated by reference to
Exhibit 10.6 of the Registration statement on Form S-1 (File No.
33-98502) of Ascent Entertainment Group, Inc.).
10.2 Hilton Hotels Corporation-On Command Video Agreement, dated April 27,
1993, by and between Hilton Hotels Corporation and On Command Video
Corporation, which is incorporated by reference to Exhibit 10.4 of
Form S-4 (confidential treatment granted).
10.3* Amended and Restated Employment Agreement between On Command
Corporation and Robert Kavner, dated as of December, 1998.
(previously filed)
10.4* Amendment to Employment Agreement between On Command Corporation and
Brian Steel, dated as of December 31, 1998. (previously filed)
10.5* Employment and Consulting Agreement, dated November 20, 1991, between
Robert Snyder and On Command Video Corporation which is incorporated
by reference to Exhibit 10.9 of Form S-4.
10.6 Standard Lease, dated June, 1996, between Berg & Berg Developers, and
On Command Video Corporation (Incorporated by reference to Exhibit
10.10 of the Annual Report on Form 10-K for the year ended December
31, 1996 ("OCC 1996 Form 10-K")).
10.7 Corporate Agreement dated as of October 8, 1996, between On Command
Corporation and Ascent Entertainment Group, Inc. (Incorporated by
reference to Exhibit 10.22 of the Annual Report on Form 10-K for the
year ended December 31, 1996 at Ascent Entertainment Group, Inc.
(Commission File No. 0-27192)).
10.8* 1996 Key Employee Stock Plan (Incorporated by reference to Exhibit
10.13 of the OCC 1996 Form 10-K).
10.9* 1997 Employee Stock Purchase Plan (Incorporated by reference to
Exhibit 4(c) of Form S-8 filed August 8, 1997).
10.10* 1997 Non-Employee Directors Stock Plan (Incorporated by reference to
Exhibit 4(d) of Form S-8 filed August 8, 1997).
10.11 First Amended and Restated Credit Agreement dated as of November 24,
1997, between On Command Corporation and the Lenders Named Therein
and NationsBank of Texas, N.A. (previously filed)
10.12 Change of Control Severance Plan for Executive Officers. (previously
filed)
21.1 Subsidiaries of On Command Corporation. (previously filed)
23.1 Independent Auditors' Consent. (previously filed)
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* Indicates compensatory plan or arrangement.
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EXHIBIT 3.4
AMENDMENT TO THE BYLAWS
OF
ON COMMAND CORPORATION
AS OF NOVEMBER 23, 1998
Pursuant action duly authorized and approved by the Board of Directors of the
corporation, the bylaws of the corporation are hereby amended as follows:
Article III, Section 2 is hereby amended and restated in its entirely as
follows:
Section 2. Number of Directors. The number of directors which shall
constitute the whole Board of Directors shall be nine. The directors need not be
stockholders of the corporation.
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