<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIRTUAL TECHNOLOGY CORPORATION
(Exact name of Registrant as Specified in its Charter)
MINNESOTA
(State of Incorporation)
IRS EIN #41-1639011
(I.R.S. Employer Identification Number)
3100 WEST LAKE STREET, SUITE 400
MINNEAPOLIS, MN 55416
(612)915-1122
(Address, including zip code and telephone
number, including area code, or registrant's principal
executive offices)
1999 THURMAN CONSULTING PLAN
(Full Title of the Plan)
Messerli & Kramer P.A.
Attention: Jeffrey C. Robbins, Esq.
150 South Fifth Street, Suite 1800
Minneapolis, MN 55402
(612) 672-3600
(Name, address, including zip code and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Amount maximum maximum
Title of securities to to be offering price aggregate Amount of
be registered registered per unit offering price registration fee
------------- ---------- -------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, 200,000 $3.00 $600,000 $167.00
no par value
</TABLE>
<PAGE> 2
Part II
Item 3.
The following documents are incorporated herein by reference:
(a) (1) The Form 10-K of Virtual Technology Corporation, filed with the SEC
on May 6, 1999.
(2) The Form 10-SB of Virtual Technology Corporation, filed with the SEC
on February 12, 1999.
(b) All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
(c) (i) Form of Common Stock Certificate, see Exhibit 3(a) for the Form
10-SB of Virtual Technology Corporation, filed February 12, 1999; and (ii) Form
of Stock Purchase Warrant, see Exhibit 3(b) of the Form 10-SB of Virtual
Technology Corporation, filed February 12, 1999.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock offered hereby will be passed upon for
the Company by Messerli & Kramer P.A. of Minneapolis, Minnesota ("Messerli &
Kramer"). As of the date of this prospectus, Messerli & Kramer owns 27,500
shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers.
The Bylaws of the Company and the statutes of the State of Minnesota
give the Company the power to indemnify any director, officer, employee, or
agent who was or is a party to any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative,
against certain liabilities and expenses incurred in connection with the action,
suit, or proceeding. The Bylaws of the Company provide that the Company shall
indemnify any such directors, officers, employees, or agents to the full extent
provided under applicable provisions of the Minnesota Statutes. These provisions
do not affect the availability of equitable remedies, such as an action to
enjoin or rescind a transaction involving a breach of fiduciary duty, although,
as a practical matter, equitable relief may not be available. In the opinion of
the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act. As a result, the above provisions may
not limit liability of the directors for violations of, or relieve them from the
necessity of complying with, the federal securities laws.
<PAGE> 3
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT NUMBER
1.* Amended and Restated Certificate of Incorporation of the Company dated
June 17, 1999.
2.** Amended and Restated Bylaws of the Company.
3. Consulting Agreement
4. Opinion of Messerli & Kramer P.A.
5. Consent of Lurie, Besikof, Lapidus & Co., LLP.
6. Consent of Copeland Buhl & Co. PLLP.
7. Consent of Samuel T. Kantos.
8. Power of Attorney is contained on the signature pages.
- -------------
* Incorporated by reference from the Company's Registration Statement on
Form S-8 for the 1999 Sports Marketing Plan, filed with the SEC on June
21, 1999.
** Documents incorporated by reference from the Company's Registration
Statement on Form 10-SB, filed with the SEC on February 12, 1999.
Item 9. Undertakings.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually
<PAGE> 4
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement, and (iii) To include any
material information with respect to the plan of distribution
not previously disclosed in the registration statement or any
material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question 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.
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on June 17, 1999.
VIRTUAL TECHNOLOGY CORPORATION
------------------------------
By: Kenneth Israel
Its: Chairman
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Greg Appelhof and Kenneth Israel and each
or any one of them, his true and lawful attorney-in-fact and agent, 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
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 that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE
/s/ Kenneth Israel
- --------------------------- Chairman of the Board (Principal Executive
Kenneth Israel (Officer)
Date: June 17, 1999
/s/ John Harvatine
- ---------------------------- Chief Financial Officer (Principal Financial
John Harvatine and Accounting Officer)
Date: June 17, 1999
<PAGE> 6
/s/ Jeff Maynard
- --------------------------- Director
Jeff Maynard
Date: June 17, 1999
/s/ James Secord
- --------------------------- Director
James Secord
Date: June 17, 1999
/s/ Maceo Sloan
- --------------------------- Director
Maceo Sloan
Date: June 17, 1999
<PAGE> 1
EXHIBIT 3
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into as of June
17, 1999 by and between Virtual Technology Corporation ("VTC"), a Minnesota
corporation and Michael Thurman, of 1182 King Ave., Columbus, OH 43212
("Consultant").
RECITALS
A. VTC is a public company whose Common Stock, with a par value of
$.001 per share is quoted on the OTC Bulletin Board. VTC is in the business of
selling computers and computer-related equipment on the Internet.
B. Consultant has experience developing traffic for web sites and
portals.
C. VTC wishes to contract for creative advice and banner
impressions (advertising space) on the Internet.
AGREEMENT
NOW, THEREFORE, it is mutually agreed by and between the Parties as
follows:
1. ENGAGEMENT. VTC hereby contracts for a minimum of 1,000,000
banner impressions and a maximum of 10,000,000 impressions per month for a
period of 12 months.
2. CONSULTING SERVICES. The consulting services contemplated by
this Agreement (the "Consulting Services") shall consist of:
a. Reviewing and evaluating VTC's current banner ads and
remaining knowledgeable about the contents thereof;
b. Working with VTC's creative team to develop and prepare a
targeted banner advertising strategy; and
c. Working with VTC's creative team to periodically revise the
VTC banner ad strategy as required during the term of this Agreement.
3. DUTIES EXPRESSLY EXCLUDED. This Agreement expressly excludes the
Consultant from providing any and all capital formation and/or public relations
services to the Company inclusive of, but not limited to (i) direct or indirect
promotion of the Company's securities; (ii) assistance in making of a market in
the Company's securities; and (iii) assistance in obtaining debt and/or equity
financing.
4. CONSIDERATION. In consideration of the performance by Consultant
of the Consulting Services, VTC will issue to David Thurman (the designated
employee of Consultant) 200,000 shares of VTC's Common Stock (the "Shares")
valued at $3.00 per share, based upon the market price on the date of this
Agreement. In the event that Consultant does not completely perform the
Consulting
<PAGE> 2
Services (for any reason including the death or incapacity of Consultant), then
for each month that Consultant does not perform the Consulting Services, one
sixth (1/6) of the Shares (as adjusted for stock splits, reverse stock splits,
stock dividends or distributions or other reclassifications of VTC's common
stock) shall be returned to VTC and canceled. Consultant agrees to purchase
shares in the open market, if necessary, to fulfill such obligation to return
shares to VTC.
The shares will be issued as soon as practicable following execution of
this Agreement and the filing of a registration statement under the Securities
Act of 1933, as amended, on Form S-8 covering the Shares.
5. EXPENSES. Consultant shall bear his out-of-pocket costs and
expenses incident to performing the Consulting Services, without a right of
reimbursement by VTC.
6. TERM. The term of this Agreement is 12 months, commencing
June 17, 1999 and ending June 17, 2000 (the "Term"). This Agreement may be
terminated prior to the end of the Term upon the mutual written agreement of the
Parties or in the event Consultant is in default (as defined below) in the
performance of the Consulting Services, which default is not cured within a
reasonable time following written notice thereof from VTC. A "default" occurs
when, in VTC's sole and exclusive judgment, Consultant is not satisfactorily
performing the Consulting Services.
7. CONSULTANT'S LIABILITY. In the absence of gross negligence or
willful misconduct on the part of the Consultant or the Consultant's breach of
any term of this Agreement, the Consultant shall not be liable to the Company or
to any officer, director, employee, shareholder or creditor of the Company, for
any act or omission in the course of or in connection with the rendering or
providing of services hereunder. Except in those cases where gross negligence or
willful misconduct of the Consultant or the breach by the Consultant of any
terms of this Agreement is alleged and proven, the Company agrees to defend,
indemnify, and hold the Consultant harmless from and against any and all
reasonable costs, expenses and liability (including reasonable attorney's fees
paid in the defense of the Consultant) which may in any way result from services
rendered by the Consultant pursuant to or in connection with this Agreement.
This indemnification expressly excludes any and all damages as a result of any
actions or statements, on behalf of the Company, made by the Consultant without
the prior approval or authorization of the Company.
8. COMPANY'S LIABILITY. The Consultant agrees to defend, indemnify,
and hold the Company harmless from and against any and all reasonable costs,
expenses and liability (including reasonable attorney's fees paid in defense of
the Company) which may in any way result pursuant to its gross negligence or
willful misconduct or in any connection with any actions taken or statements
made, on behalf of the Company, without the prior approval or authorization of
the Company or which are otherwise in violation of applicable law.
9. CONSULTANT'S REPRESENTATIONS. The Consultant makes the following
representations:
(a) Consultant has no prior or existing legally binding
obligations that are in conflict with its entering into this Agreement;
<PAGE> 3
(b) Consultant shall not offer or make payment of any
consideration to brokers, dealers, or others for purposes of inducing the
purchase, making of a market or recommendation for the purchase of the Company's
securities;
(c) Consultant is not currently the subject of an investigation
or inquiry by the Securities and Exchange Commission, the NASD, or any state
securities commission;
(d) Consultant's activities and operations fully comply with
now and will comply with in the future all applicable state and federal
securities laws and regulations;
(e) Consultant is either properly registered as, or exempt from
registration, as a broker-dealer or an investment advisor;
(f) Consultant understands that, as a result of its services,
it may come to possess material non-public information about the Company, and
that it has implemented internal control procedures designed to reasonably
insure that none of its employees, agents, consultants or affiliates, trade in
the securities of client companies while in possession of material non-public
information;
(g) During the Term of this Agreement and for a period of two
years thereafter, the Consultant shall treat as the Company's confidential trade
secrets all data, information, ideas, knowledge and papers pertaining to the
affairs of the Company. Without limiting the generality of the foregoing such
trade secrets shall include: the identity of the Company's customers, suppliers
and prospective customers and suppliers; the identity of the Company's creditors
and other sources of financing, the Company's estimating and costing procedure
and the cost and gross prices charged by the Company for its products; the
prices or other consideration charged to or required of the Company by any of
the suppliers or potential suppliers; the Company's sales and promotional
policies; and all information relating to entertainment programs or properties
being produced or otherwise developed by the Company. The Consultant shall not
reveal said trade secrets to others except in the proper exercise of its duties
for the Company, or use their knowledge thereof in any way that would be
detrimental to the interest of the Company unless compelled to disclose such
information by judicial or administrative process; provided, however, that the
divulging of information shall not be a breach of this Agreement to the extent
that such information was (i) previously known by the party to which it is
divulged, (ii) already in the public domain, all through no fault of the
Consultant, or (iii) required to be disclosed by Consultant pursuant to judicial
or governmental order. The Consultant shall also treat all information
pertaining to the affairs of the Company's suppliers and customers and
prospective customers and suppliers as confidential trade secrets of such
customers and suppliers and prospective customers and suppliers; and
(h) Consultant agrees to notify the Company immediately if, at
any time, any of the representations and warranties made by the Consultant
herein are no longer true and correct or if a breach of any of the
representations and warranties made by the Consultant herein occurs.
10. COMPANY REPRESENTATIONS. The Company makes the following
representations:
(a) The Company is in good standing in the state of
incorporation, Minnesota.
<PAGE> 4
(b) The Company and its senior management are not aware of any
materially adverse events not previously disclosed in the Company's annual and
quarterly reports with the Securities and Exchange Commission.
11. ENTIRETY OF AGREEMENT. This Agreement sets forth the entire
understanding of the Parties with respect to the matters contemplated hereby.
Any and all previous agreements and understandings between or among the Parties
regarding the subject matter hereof, whether written or oral, are superseded by
this Agreement. This Agreement shall not be amended or modified except by
written instrument duly executed by each of the Parties.
12. ASSIGNMENT AND BINDING EFFECT. This Agreement may not be assigned
without the prior written consent of the other Party.
13. WAIVER. Any term or provision of this Agreement may be waived at
any time by the Party entitled to the benefit thereof by a written instrument
duly executed by such Party.
14. NOTICES. Any notice, request, demand, waiver, consent, approval
or other communication which is required or permitted hereunder shall be in
writing and shall be deemed given only if delivered personally or sent by
facsimile, or by registered or certified mail, postage prepaid, as follows:
If to VTC to:
Virtual Technology Corporation
3100 West Lake Street
Minneapolis, MN 55416
If to Consultant, to:
Attn: Mr. Michael Thurman
1182 King Ave
Columbus, OH 43212
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communications will be deemed to have been given as
of the date so delivered, telephoned or mailed.
15. GOVERNING LAW. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of Minnesota.
16. NO BENEFIT TO OTHERS. The representations, warranties, covenants
and agreements contained in this Agreement are for the sole benefit of the
Parties hereto.
<PAGE> 5
17. SEVERABILITY. Any provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability in such jurisdiction without invalidating or
rendering unenforceable the remaining provisions hereof, and any such invalidity
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18. HEADINGS. The headings of this Agreement are inserted solely for
the convenience of reference and are not part of, and are not intended to
govern, limit or aid in the construction of any term or provision hereof.
19. FURTHER ACTS. Each party agrees to perform any further acts and
execute and deliver any further documents that may be reasonably necessary to
carry out the provisions and intent of this Agreement.
20. ACKNOWLEDGMENT CONCERNING COUNSEL. Each party acknowledges that
it had the opportunity to employ separate and independent counsel of its own
choosing in connection with this Agreement.
21. INDEPENDENT CONTRACTOR STATUS. There is no relationship,
partnership, agency, employment, franchise OR joint venture between the parties.
The parties have no authority to bind the other or incur any obligations on
their behalf.
22. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
on the date first above written.
VIRTUAL TECHNOLOGY CORPORATION
A Minnesota corporation
By: /s/ Kenneth Israel
-------------------------------
Name: Kenneth Israel, Chairman
Michael Thurman, Consultant
By: /s/ Michael Thurman
-------------------------------
Name: Michael Thurman
----------------
<PAGE> 1
EXHIBIT 4
[MESSERLI & KRAMER, P.A. LETTERHEAD]
June 22, 1999
Virtual Technology Corporation
3100 West Lake Street
Minneapolis, MN 55416
RE: Virtual Technology Corporation - Issuance of Securities
Our File No. 11041/1
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in
connection with the filing by Virtual Technology Corporation, (the "Company") of
a Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the sale of 200,000 shares of the
Company's Common Stock, $.001 par value (the "Shares"), that will be issued to
David Thurman pursuant to a Consulting Agreement (the "Consulting Agreement")
with Michael Thurman.
In connection with this opinion, we have examined the Registration
Statement, the Company's amended and restated Articles of Incorporation and
By-laws, and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have assumed
the genuineness and authenticity of all documents submitted to us as originals,
the conformity to originals of all documents submitted to us as copies thereof,
and the due execution and delivery of all documents, where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the
opinion that the Shares, when sold and issued in accordance with the Consulting
Agreement and the Registration Statement, will be validly issued, fully paid,
and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ MESSERLI & KRAMER P.A.
<PAGE> 1
EXHIBIT 5
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Virtual Technology Corporation on Form S-8 of our reports dated April 23, 1999,
appearing in the Annual Report on Form 10-K of Virtual Technology Corporation
for the year ended January 31, 1999.
/s/ LURIE, BESIKOF, LAPIDUS & CO., LLP
Minneapolis, Minnesota
June 22, 1999
<PAGE> 1
EXHIBIT 6
June 22, 1999
INDEPENDENT AUDITOR'S CONSENT
We hereby consent to the incorporation by reference in this Registration
Statement of Virtual Technology Corporation on Form S-8 of our report dated
April 11, 1997, appearing in the Company's Registration Statement on Form 10-K
filed May 6, 1999.
/s/ COPELAND, BUHL & COMPANY, P.L.L.P.
Wayzata, Minnesota
<PAGE> 1
EXHIBIT 7
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Virtual Technology Corporation on Form S-8 of our reports dated February 10,
1999 and April 23, 1999, appearing in the Registration Statement on Form 10-K
filed May 6, 1999.
/s/ SAMUEL T. KANTOS AND ASSOCIATES
Minneapolis, Minnesota
June 17, 1999
