<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
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 FONTENELLE, LLC 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>
Title of Amount Proposed maximum Proposed maximum
securities to be to be offering price aggregate Amount of
registered registered per unit offering price registration fee
---------- ---------- -------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.01 1,000,000 $5.875 $5,875,000 $1,633.25
par value
</TABLE>
<PAGE> 2
Part II
Item 3.
The following documents are incorporated herein by reference:
(a) The Form 10-SB of Virtual Technology Corporation, filed with the SEC on
February 12, 1999, as it may be amended from time to time (the "Form 10-SB").
(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) of the Form 10-SB
and (ii) Form of Stock Purchase Warrant, see Exhibit 3(b) of the Form 10-SB.
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 Amendment No. 1 to Form S-8, Messerli & Kramer
P.A. owns 37,500 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.
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 and Company, PLLP.
7. Consent of Samuel T. Kantos
- -------------
* Documents incorporated by reference from the Company's Registration
Statement on Form 10-SB (SEC FILE #000-25397), 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 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%
<PAGE> 4
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 Amendment No. 1 to
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Minneapolis, State of Minnesota, on
April 13, 1999.
VIRTUAL TECHNOLOGY CORPORATION
/s/ Greg Appelhof
---------------------------------------------
By: Greg Appelhof
Its: President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities on
April 13, 1999.
SIGNATURE TITLE
- --------- -----
/s/ Kenneth Israel* Chairman of the Board
- -------------------------------
Kenneth Israel
/s/ John Harvatine* Chief Financial Officer
- ------------------------------- (Principal Financial and
John Harvatine Accounting Officer)
/s/ John Welch* Director
- -------------------------------
John Welch
/s/ Jeff Maynard* Director
- -------------------------------
Jeff Maynard
/s/ Greg Appelhof President, Chief Executive
- ------------------------------- Officer and Director
Greg Appelhof (Principal Executive
Officer)
- ----------------
* Signed by Greg Appelhof, attorney-in-fact.
<PAGE> 1
EXHIBIT 3
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into as of
February 23, 1999 by and between Virtual Technology Corporation ("VTC"), a
Minnesota corporation and Fontenelle, LLC ("Consultant"), a Nevada limited
liability company.
RECITALS
A. VTC is a public company whose Common Stock, no par value, is quoted
on the OTC Bulletin Board. VTC is in the business of selling computers and
computer-related equipment on the Internet.
B. Consultant is experienced in evaluating and developing strategic
business plans.
C. VTC wishes to engage the Consultant on a nonexclusive basis as an
independent contractor to utilize Consultant's services to further develop and
refine its strategic business plan.
AGREEMENT
NOW, THEREFORE, it is mutually agreed by and between the Parties as
follows:
1. ENGAGEMENT. VTC hereby retains and engages Consultant to evaluate
and assist in the development of VTC's strategic business plan and as described
in more detail in paragraph 2 below (the "Consulting Services"), and Consultant
agrees to perform the Consulting Services subject to the terms and conditions of
this Agreement.
2. CONSULTING SERVICES. The consulting services contemplated by this
Agreement (the "Consulting Services") shall consist of:
a. Reviewing and evaluating VTC's current business plan and
remaining knowledgeable about the contents thereof;
b. Working with VTC's management to develop and prepare a detailed
strategic business plan; and
c. Working with VTC's management to periodically revise the VTC
strategic business plan as required during the term of this Agreement.
d. Provide introductions to computer/computer resale industry
contacts.
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.
<PAGE> 2
4. CONSIDERATION. In consideration of the performance by Consultant of
the Consulting Services, VTC will issue to Consultant 1,000,000 shares of VTC's
Common Stock (the "Shares") at a purchase price of $5.875 per share, for a total
consideration of $5,875,000. In the event that Consultant does not completely
perform the Consulting 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 one year, commencing February
23, 1999 and ending February 23, 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.
<PAGE> 3
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;
(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) Consultants 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, 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 to insure
that it is 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 tot he 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.
<PAGE> 4
10. COMPANY REPRESENTATION'S. The Company makes the following
representations:
(a) The Company is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD, or any state
securities commission.
(b) The Company is in good standing in the state of incorporation,
Minnesota.
(c) 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:
Fontenelle, LLC
Attn: Mr. Steven Antebi
345 North Maple Drive, Suite 358
Beverly Hills, California 90210
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.
<PAGE> 5
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.
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/ Greg Appelhof
---------------------------------
Name: Greg Appelhof, President
FONTENELLE, LLC
a Nevada Limited Liability Company
By:
/s/ Steven Antebi
---------------------------------
Name: Steven Antebi - Authorized Officer
<PAGE> 1
EXHIBIT 4
[MESSERLI & KRAMER LETTERHEAD]
April 14, 1999
Virtual Technology Corporation
3100 West Lake Street
Minneapolis, MN 55416
RE: VIRTUAL TECHNOLOGY CORPORATION - ISSUANCE OF SECURITIES
OUR FILE NO. 11041/8
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 1,000,000 shares of the
Company's Common Stock, no par value (the "Shares"), that will be issued
pursuant to the 1999 Consulting Agreement with Fontenelle, LLC, a Nevada limited
liability company (the "Consulting Agreement.")
In connection with this opinion, we have examined the Registration
Statement, the Company's 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. We further are relying upon the oral
representations of the Company that the stock certificate for the shares already
issued to Fontenelle in connection with the Consulting Agreement in error will
be cancelled and reissued to Fontenelle upon the effectiveness of the
Registration Statement. We are also relying upon the oral representations of
Steven Antebi that he is the sole member of Fontenelle and will be the sole
natural person who will perform the consulting services pursuant to the
Consulting Agreement with the Company, and that Fontenelle will distribute to
Mr. Antebi, as its sole member, the shares of the Company's stock issued to
Fontenelle pursuant to the Consulting Agreement for his personal sale or
transfer.
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 Amendment No. 1 to
Registration Statement of Virtual Technology Corporation on Form S-8 of our
report dated May 13, 1998, appearing in the Registration Statement on Form 10-SB
filed February 12, 1999.
/s/ LURIE, BESIKOF, LAPIDUS & CO., LLP
Minneapolis, Minnesota
April 13, 1999
<PAGE> 1
EXHIBIT 6
April 13, 1999
INDEPENDENT AUDITOR'S CONSENT
We hereby consent to the incorporation by reference in this Amendment No. 1 to
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-SB filed February 12, 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 Amendment No. 1 to the
Registration Statement of Virtual Technology Corporation on Form S-8 of our
report dated March 4, 1998, appearing in the Registration Statement on Form
10-SB filed February 12, 1999.
/s/ SAMUEL T. KANTOS AND ASSOCIATES
Minneapolis, Minnesota
April 13, 1999
