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As filed with the Securities and Exchange Commission on June 20, 1996
Registration No. 33-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------
VIDEOLAN TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 61-1283466
(State or other jurisdiction of (I.R.S. Employee
incorporation or organization) Identification No.)
100 Mallard Creek Road, Suite 250
Louisville, Kentucky 40207
(Address of principal executive offices)
---------------------
STOCK OPTIONS GRANTED TO CERTAIN OFFICERS, DIRECTORS,
EMPLOYEES AND CONSULTANTS OF THE COMPANY
(Full title of the plan)
---------------------
Ted Ralston
Chairman of the Board of Directors
VideoLan Technologies, Inc.
100 Mallard Creek Road, Suite 250
Louisville, Kentucky 40207
(502) 895-4858
(Name, Address and Telephone Number of Agent For Service)
---------------------
Copies to:
William G. Strench
Hirn Doheny & Harper
2000 Meidinger Tower
Louisville, Kentucky 40202
(502) 585-2450
-----------------------
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price offering registration
to be registered registered per share price fee
- ------------------- ------------ --------- --------------- -----------
Common Stock, 625,000 $3.00(1) $1,500,000.00(1) $517.24
$0.01 par value shares(1)
(1) To be issued pursuant to the exercise of stock options granted to Vernon L.
Jackson (375,000 shares at an exercise price of $2.00 per share), Steven B.
Rothenberg (100,000 shares at an exercise price of $3.00 per share), Mark
Scott (100,000 shares at an exercise price of $3.00 per share) and John
Haines (50,000 shares at an exercise price of $3.00 per share).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents are incorporated by reference in this registration
statement:
(a) The registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1995;
(b) The registrant's Quarterly Report on Form 10-Q SB for the quarter ended
March 31, 1996; and
(c) The description of the registrant's Common Stock, $0.01 par value per
share, and of its Redeemable Common Stock Purchase Warrants contained in the
registrant's Registration Statement on Form SB-2 (File No. 33-93086), as such
description may be amended or updated.
All documents subsequently filed by the registrant pursuant to Sections 13,
14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment to this registration statement indicating that all of
the securities offered have been sold or deregistering all of such shares then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
Item 6. Indemnification of Directors and Officers.
The registrant is incorporated in Delaware. Under Section 145 of the
General Corporation Law of the State of Delaware (the "DGCL"), a Delaware
corporation has the power, under specified circumstances, to indemnify its
directors, officers, employees, and agents in connection with actions, suits, or
proceedings brought against them by a third party or in right of the
corporation, by reason of the fact that they were or are such directors,
officers, employees, or agents, against expenses incurred in any action, suit or
proceeding. Article Seventh of the Certificate of Incorporation of the
registrant provides for indemnification of directors and officers to the fullest
extent permitted by the DGCL. Section 102(b)(7) of the DGCL provides that a
certificate of incorporation may contain a provision eliminating or limiting the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional
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misconduct or a knowing violation of law, (iii) under Section 174 (relating to
liability for unauthorized acquisitions or redemptions of, or dividends on,
capital stock) of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. Article Eighth of the registrant's
Certificate of Incorporation contains such a provision.
Section 145(f) of the DGCL provides that indemnification pursuant to its
provisions is not exclusive of other rights of indemnification to which a person
may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise. Section 145(g) of the DGCL provides that
a corporation may purchase and maintain insurance on behalf of directors,
officers, employees or agents of the corporation against any liability asserted
against or incurred by such parties in their respective capacity with the
corporation. The registrant has obtained directors and officers' liability
insurance coverage.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 .......... Certificate of Incorporation of the registrant (incorporated by
reference to Exhibit No. 3.1 of the registrant's Registration
Statement on Form SB-2 (File No. 33-93086))
4.2 .......... Bylaws of the registrant (incorporated by reference to Exhibit
No. 3.2 of the registrant's Registration Statement on Form SB-2
(File No. 33-93086))
4.3 .......... Employment Agreement and Employment Agreement Addendum between
the Company and Steven B. Rothenberg (incorporated by reference
to Exhibit 10.29 of the registrant's Annual Report on Form
10-KSB for the fiscal year ended December 31, 1995)
4.4 .......... Option Agreement between the Company and John E. Haines
(incorporated by reference to Exhibit 10.33 of Post-Effective
Amendment No. 1 to the registrant's Registration Statement on
Form SB-2 (File No. 33-93086))
4.5 .......... Consulting Agreement between the Company and Mark P. Scott
5 ............ Opinion of Hirn Doheny & Harper
24.1 .......... Consent of Grant Thornton LLP
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24.2 .......... Consent of Hirn Doheny & Harper (contained in their opinion
filed as Exhibit 5)
25 ............ Powers of Attorney (included on the signature page of this
registration statement)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or
the most recent post-effective amendment hereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
shall 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 registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the DGCL, the Certificate of Incorporation and the
Bylaws of the registrant, 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 of 1933, and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than 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 of 1933 and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Louisville, Commonwealth
of Kentucky, on the ____ day of June, 1996.
VIDEOLAN TECHNOLOGIES, INC.
By:
-----------------------------------
Peter Beck, Chief Operating Officer
/s/ Peter Beck
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints Peter Beck and Steven B. Rothenberg, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and re-substitution, 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, 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
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
- ---------------------- Chairman of the Board of June 20, 1996
Ted Ralston Directors
/s/ Ted Ralston
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Chief Operating Officer June 20, 1996
- ---------------------- (Principal Executive Officer)
Peter Beck
/s/ Peter Beck
Vice President-Finance, June 20, 1996
- ---------------------- Chief Financial Officer (Chief
Steven B. Rothenberg Accounting Officer), and Director
/s/ Steven B. Rothenberg
- ---------------------- Director June 20, 1996
Vernon Jackson
/s/ Vernon Jackson
- ---------------------- Director June 20, 1996
Howard S. Jacobs
/s/ Howard S. Jacobs
- ---------------------- Director June 20, 1996
John R. Glankler
/s/ John R. Glankler
- ---------------------- Director June 20, 1996
R. Dean Jackson
/s/ R. Dean Jackson
- ---------------------- Director June 20, 1996
Jacques O. de Labry
/s/ Jacques O. de Labry
II-6
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Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 .......... Certificate of Incorporation of the registrant (incorporated by
reference to Exhibit No. 3.1 of the registrant's Registration
Statement on Form S-1 (File No. 33-93086))
4.2 .......... Bylaws of the registrant (incorporated by reference to Exhibit
No. 3.2 of the registrant's Registration Statement on Form S-1
(File No. 33-93086))
4.3 .......... Employment Agreement and Employment Agreement Addendum between
the Company and Steven B. Rothenberg (incorporated by reference
to Exhibit 10.29 of the registrant's Annual Report on Form
10-KSB for the fiscal year ended December 31, 1995)
4.4 .......... Option Agreement between the Company and John E. Haines
(incorporated by reference to Exhibit 10.33 of Post-Effective
Amendment No. 1 to the registrant's Registration Statement on
Form S8-2 (File No. 33-93086))
4.5 .......... Consulting Agreement between the Company and Mark P. Scott
5 ............ Opinion of Hirn Doheny & Harper
24.1 .......... Consent of Grant Thornton, LLP
24.2 .......... Consent of Hirn Doheny & Harper (contained in their opinion
filed as Exhibit 5)
25 ............ Powers of Attorney (included on the signature page of this
registration statement)
<PAGE>
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") dated as of the 2nd day of October,
1995, is entered into by and between VIDEOLAN TECHNOLOGIES, INC., a Delaware
corporation ("Company") and MARK P. SCOTT ("Mr. Scott") under the following
circumstances:
A. Mr. Scott desires to provide certain consulting services to Company
relating to, among other things, sales and marketing of the Company's
products to the telecommunications industry (the "Services"); and
B. Company desires to obtain the Services from Mr. Scott, as more
fully set forth below.
NOW, THEREFORE, based on the foregoing and the mutual promises set forth
below, Company and Mr. Scott hereby agree as follows:
1. Services. Mr. Scott shall, upon reasonable request of Company, provide
Services to Company. Mr. Scott shall provide at least forty (40) hours of
Services per week, unless Mr. Scott and Company mutually agree that it is not
necessary to provide such time and attention to the Services. Mr. Scott shall
perform the services as reasonably requested by Company in a professional manner
within the time frames agreed to by Company and Mr. Scott.
2. Compensation for Services. Company hereby agrees to pay Mr. Scott in
consideration for his performance of Services $10,500 per month during the term
of this Agreement, to be paid in installments of $5,250 on the 15th day and the
last business day of each month. In addition, VideoLan hereby grants to Mr.
Scott on the date hereof options to purchase 100,000 shares of its common stock,
$0.01 par value per share ("Common Stock"). The exercise price per share shall
be $3.00. Each option granted under this Agreement shall be exercisable for 5
years from the date of grant, subject to the following restrictions: (i) options
covering 25,000 shares shall first be exercisable 15 months beyond the Effective
Date (as hereinafter defined); (ii) options covering an additional 25,000 shares
shall first be exercisable 36 months beyond the Effective Date, so long as Mr.
Scott is affiliated with Company either as a consultant or employee on the date
that is 12 months beyond the Effective Date; (iii) options covering an
additional 25,000 shares shall first be exercisable 36 months beyond the
Effective Date, so long as Mr. Scott is affiliated with Company either as a
consultant or employee on the date that is 24 months beyond the Effective Date;
and (iv) options covering the final 25,000 shares shall first be exercisable 36
months beyond the Effective Date, so long as Mr. Scott is affiliated with
Company either as a consultant or employee on the date that is 36 months beyond
the Effective Date.
3. Expenses. Subject to Company's approval, which approval shall not be
unreasonably withheld, Company shall reimburse Mr.
<PAGE>
Scott for reasonable out-of-pocket expenses incurred by Mr. Scott in performing
the Services under this Agreement. Upon request, Mr. Scott shall provide Company
with receipts for such expenses.
4. Covenant Not to Compete. Company and Mr. Scott agree that the Services
to be rendered by Mr. Scott hereunder are unique. In consideration for all the
rights granted to Mr. Scott in this Agreement, Mr. Scott hereby agrees that
during the term of this Agreement, and for a period of two (2) years after the
termination of this Agreement unless such termination is by the Company without
Cause, Mr. Scott will not, from any location in the United States of America or
elsewhere where the Company conducts business during the term of this Agreement,
engage in or participate in, directly or indirectly, individually or as an
agent, employee, officer, director, shareholder (excluding being the holder of
stock which represents not more than a 2% interest in a publicly-held
corporation), partner, financier, consultant or in any other capacity whatsoever
or lend his name to any business involved in the research, development,
commercialization, manufacture, assembly, sale, licensing, sublicensing,
distribution, supplying or marketing of desktop video conferencing products,
video on demand products, and/or related products and other applications of
Company's technology, and/or products as currently exist or are developed or
under development during the term of this Agreement.
5. Non-Disclosure.
A. "Proprietary Information" means information disclosed to or
otherwise made available to Mr. Scott or known by him as a consequence of
or through Mr. Scott's providing Services to Company and related to any
technologies, applications, patents, patent applications and/or claims,
products, processes, or services in which Company is currently or is likely
to become engaged, and which gives either Company and/or subsidiaries and
affiliates a competitive advantage, including, without limitation,
information relating to patents, patent applications, research, development
and inventions.
B. Mr. Scott recognizes and acknowledges that all information defined
herein as Proprietary Information, is valuable, special, and unique
belonging solely to Company. Mr. Scott shall not, during the term of this
Agreement or at any time thereafter, directly or indirectly, use or
disclose Proprietary Information whether or not specifically described
above except (i) as required in connection with the performance of Services
or (ii) as permitted, in writing, by the Board of Directors of the Company.
C. The obligation of Mr. Scott to protect and not to disclose the
Proprietary Information disclosed to him shall not apply to information
that is:
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(1) Actually known by Mr. Scott before being obtained from the
Company;
(2) Independently developed by, known or in the possession of Mr.
Scott at the time of disclosure hereunder;
(3) Generally available to the public prior to its disclosure by
the Company or that becomes generally available to the public after
disclosure by the Company through no fault of Mr. Scott;
(4) Obtained or acquired by Mr. Scott from a third party in
possession of such information who is not under obligation to the
Company not to disclose the information; or
(5) Ordered by a court of competent jurisdiction or governmental
agency to be produced by Mr. Scott; provided, however, that upon the
receipt of any such order, Mr. Scott shall immediately notify the
Company of such order so that an appropriate protective agreement or
order can be sought.
6. Effective Date. The Effective Date shall be November 1, 1995.
7. Term. The term of this Agreement shall commence on the Effective Date
and shall continue until the date three (3) years from the Effective Date,
unless sooner terminated pursuant to Section 8 hereof.
8. Termination.
A. This Agreement shall be terminated immediately upon the death of
Mr. Scott. This Agreement may be terminated by Company if Mr. Scott should
be rendered incapable by illness or any other causes relating to Mr.
Scott's health from complying with the provisions of this Agreement for a
consecutive six month period ("Disability"). If this Agreement is
terminated by reason of the Disability of Mr. Scott, Company shall give at
least thirty (30) days' written notice of such termination to Mr. Scott.
B. This Agreement shall terminate immediately "For Cause" at the
option of Company, in the event Mr. Scott shall (i) have been convicted of,
or pled guilty or no contest to, a felony or lesser crime involving direct
injury to the Company or be convicted of or plead guilty to or no contest
to charges of theft, embezzlement or fraud or be convicted or plead guilty
or no contest to other criminal misconduct or dishonesty in conjunction
with the Company's business, (ii) commits an act which Mr. Scott knows will
have adverse
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consequences to Company, is not in the best interest of Company and is
designed to benefit Mr. Scott's own interest, including, but not limited
to, a breach by Mr. Scott of the Covenant Not to Compete provided for in
Section 4 above; or (iii) have failed to materially perform his duties to
the satisfaction of Company's board of Directors and shall have failed to
correct or improve performance to the satisfaction of Company's Board of
Directors following receipt of notice of such non-satisfaction.
C. After the termination of this Agreement, Mr. Scott shall remain
bound by the provisions Sections 4 and 5 hereof. In addition, in the event
of termination pursuant to this Section 8, Mr. Scott shall not be entitled
to receive any further compensation under this Agreement, except for his
cash compensation and reimbursable expenses earned but not yet paid.
9. Termination by Mr. Scott. Mr. Scott may terminate this Agreement with
Company if Company (i) assigns him duties significantly different from those
contemplated by this Agreement; or (ii) reduces the compensation or materially
reduces the benefits which he is entitled to receive under this Agreement; or
(iii) otherwise materially fails to honor its obligations under this Agreement.
In such event, Mr. Scott's sole remedy shall be payment by Company of cash
compensation under this Agreement for 12 months.
10. Data. Upon termination of this Agreement for any reason, Mr. Scott or
his personal representative shall promptly deliver to Company all books,
memoranda, plans, records, information and written data, and all copies of same,
of every kind relating to the business and affairs of Company which are then in
his possession.
11. Waiver of Breach. Any waiver of any breach of this Agreement shall not
be construed to be a continuing waiver or consent to any subsequent breach on
the part either of Mr. Scott or of Company.
12. Notices. Any notice required or desired to be given under this
Agreement shall be deemed given if in writing and delivered in person or sent by
certified mail (two days after deposit) or overnight express carrier (one day
after deposit) to Company at its then current principal place of business to the
attention of the Chairman of the Board of Directors or to Mr. Scott at his
residence as shown on Company's payroll records.
13. Assignment. Neither party hereto may assign his or its rights or
delegate his or its duties under this Agreement without the prior written
consent of the other party.
14. Severability. If any provision of this Agreement is held to be
unenforceable for any reason, the remainder of this Agreement shall,
nevertheless, remain in full force and effect.
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15. Entire Agreement. On the Effective Date, the terms and provisions of
this Agreement constitute the entire agreement between the Company and Mr. Scott
with respect to the subject matter hereof, and shall supersede any and all prior
agreements or understandings between the Company and Mr. Scott, with respect to
the subject matter hereof, whether written or oral. This Agreement may be
amended or modified only by a written instrument executed by Mr. Scott and
Company.
16. Governing Law. This Agreement shall be governed by, and its provisions
construed and enforced in accordance with, the laws of the State of Delaware.
17. Release. Mr. Scott hereby releases any and all rights which he may have
with respect to the Company's Proprietary Information, technology, patents and
patent applications.
18. Reporting Relationship. Mr. Scott shall report to the Chief Executive
Officer and the Board of Directors of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
VIDEOLAN TECHNOLOGIES, INC.
By: /s/ Ted Ralston
Its: Chairman of the Board
/s/ Mark. P. Scott
MARK P. SCOTT
5
June 20, 1996
VideoLan Technologies, Inc.
100 Mallard Creek Road, Suite 250
Louisville, KY 40207
Ladies and Gentlemen:
We have acted as legal counsel in connection with the preparation of a
Form S-8 Registration Statement under the Securities Act of 1933, as amended
("Registration Statement"), covering an aggregate of 625,000 shares of common
stock, no par value (the "Shares") of VideoLan Technologies, Inc., a Delaware
corporation (the "Company").
We have examined and are familiar with the Certificate of Incorporation and
Bylaws of the Company and the various corporate records and proceedings relating
to the organization of the Company and the issuance of the Shares pursuant to
the exercise of stock options granted to Vernon L. Jackson, Steven B.
Rothenberg, Mark Scott and John Haines. We have also examined such other
documents and proceedings as we have considered necessary for the purpose
of this opinion.
Based on the foregoing, it is our opinion that the Shares have been duly
authorized and, when issued and paid for in accordance with the terms of the
stock options, will be validly issued, fully paid and nonassessable.
We are qualified to practice law only in the State of Kentucky. As to
matter of Delaware law, we have reviewed the statutes set forth in Title 8 of
the Michie Company's Delaware Corporation Laws Annotated, 1994-95 Edition
(collectively, the "Delaware Statutes"). Our opinion is based solely on our
review of the Delaware Statutes.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Hirn Doheny & Harper
HIRN DOHENY & HARPER
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Exhibit 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 8, 1996 accompanying the financial
statements in the Annual Report of VIDEOLAN Technologies, Inc. on Form 10-KSB
for the year ended December 31, 1995, which is incorporated by reference in this
Registration Statement on Form S-8. We consent to the incorporation by reference
in the Registration Statement of the aforementioned report.
GRANT THORNTON LLP
New York, New York
June 19, 1996
