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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB/A
(Mark One)
[x] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934 [FEE REQUIRED]-For the fiscal year ended December 31, 1995.
[ ]TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934 [NO FEE REQUIRED]
Commission File Number: 0-26302
VIDEOLAN TECHNOLOGIES, INC.
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(Exact name of small business issuer as specified in its charter)
Delaware 33-93086
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(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
100 Mallard Creek Road Suite 250, Louisville, KY 40207
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(Address of principal executive offices) (Zip Code)
(502) 895-4858
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(Issuer's telephone number)
Securities registered under Section 12(b) of the Exchange Act:
Name of Each Exchange
Title of Each Class on Which Registered
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Common Stock, $0.01 par value per share NASDAQ
Redeemable Common Stock Purchase Warrants NASDAQ
Securities registered under Section 12(g) of the Exchange Act: None
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 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
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Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B contained in this form, and no disclosure will 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-KSB or any
amendment to this Form 10-KSB [ ]
State issuer's revenues for its most recent fiscal year: $50,053
State the aggregate market value of the voting stock held by nonaffiliates of
the registrant computed by reference to the last sales price of the Common Stock
at March 20, 1996: $232,230,342
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the last practicable date: 13,864,498 shares of Common Stock
outstanding at March 15, 1996, and 3,139,000 Redeemable Common Stock Purchase
Warrants outstanding at March 15, 1996.
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Item 13. Exhibits and reports on Form 8-K
The following exhibits are incorporated by reference from the Company's
Registration Statement on Form SB-2 (SEC File Number 33-93086) referencing the
exhibit numbers used in such Registration Statement:
3(i) - Certificate of Incorporation of the Company, a Delaware corporation
3(ii) - By-Laws of the Company, a Delaware corporation
4.1 - Specimen certificate for Common Stock
4.2 - Specimen certificate for Warrants (included in 4.3)
4.3 - Form of Warrant Agreement
4.4 - Form of Underwriter's Warrant
4.5 - Form of Consulting Agreement between Kensington Wells Incorporated
and the Company
4.6 - Lock-Up Agreement (6 months)
4.7 - Lock-Up Agreement (18 months)
10.1 - Form of Merger Agreement between VideoLan Technologies, Inc., an
Ohio corporation, and VideoLan Technologies, Inc., a Delaware
company.
10.2 - Employment Agreement between the Company and Peter Beck*
10.3 - Employment Agreement between the Company and Remy Fenouil*
10.4 - Employment Agreement between the Company and Vernon Jackson*
10.5 - Amendment to Employment Agreement between the Company and Vernon
Jackson*
10.6 - Employment Agreement between the Company and Richard Dean Jackson*
10.7 - Amendment to Employment Agreement between the Company and Richard
Dean Jackson*
10.8 - Employment Agreement between the Company and Ted Ralston*
10.9 - Employment Agreement between the Company and Vernon Jackson*
10.10 - Employment Agreement between the Company and Richard Dean Jackson*
10.11 - Lease between the Company and Plainview Plaza
10.12 - Lease between the Company and HFH Commercial Real Estate Limited
Partnership
10.13 - 1995 Stock Option Plan of the Company*
10.14 - Release of rights against the Company executed by Richard Dean
Jackson
10.15 - Settlement Agreement and Release among Triple R Industries, Inc. and
four investors
10.16 - Consulting Agreement between Ruben Levy and the Company*
10.17 - Assignment of Invention and Letters Patent from L&LD Communications
Consultant, Inc. to Triple R Industries, Inc.
10.18 - Placement Agency Agreement between the Company and Kensington Wells
Incorporated
10.19 - Form and Registration Rights Agreement among the purchasers of
shares of Common Stock in the private placement
10.20 - Registration Rights Agreement between Ruben Levy and the Company
10.21 - Option Termination and Release Agreement executed by O.H. Koeplin
10.22 - Option Termination and Release Agreement executed by Protype
Circuits, Inc.
10.23 - Option Termination and Release Agreement executed by Bruce Stuart
10.24 - Promissory Notes payable by VideoLan Technologies, Inc. to Aaron
Wolfson, Abraham Wolfson and Arielle Wolfson
10.25 - Form on Non Qualified Stock Option Agreement between VideoLan
Technologies, Inc. and Aaron Wolfson, Abraham Wolfson and Arielle
Wolfson
10.26 - Form of Custody Agreement between the Selling Stockholders and
Continental Stock Transfer & Trust Co.
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* Management contract or compensatory plan arrangements
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The following exhibits are filed with this Form 10-KSB:
10.27 - Consulting Agreement between the Company and Ted Ralston*
10.28 - Employment Agreement between the Company and John Haines*
10.29 - Employment Agreement and Employment Agreement Addendum between the
Company and Steven B. Rothenberg*
10.30 - Exclusive Distribution Agreement between the Company and Samsung
America, Inc. and Samsung Corporation**
10.31 - Severance and Release Agreement between the Company and R. Dean
Jackson*
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* Management contract or compensatory plan arrangements
** Confidential treatment requested. Omitted portions have been filed
separately with the Commission.
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SIGNATURE
Pursuant to the Securities Exchange Act of 1934, the Registrant caused this
amended report to be signed on its behalf by the undersigned thereunto duly
authorized.
VideoLan Technologies, Inc.
Dated: June 6, 1996 /s/ Steven B. Rothenberg
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Steven B. Rothenberg
Vice President, Chief
Financial Officer and
Chief Accounting Officer
Exhibit 10.30
Confidential treatment has been requested for
portions of this exhibit. Omitted portions have
been filed separately with the Commission.
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Confidential treatment has been requested for portions of this exhibit. Omitted
portions have been filed separately with the Commission.
EXCLUSIVE DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made and entered into as
of this 26th day of August, 1995 by and between (1) VIDEOLAN TECHNOLOGIES.
INC., a Delaware corporation with its principal place of business at 100 Mallard
Creed Road, Suite 250, Louisville, Kentucky 40207 ("VLT"); and (2) SAMSUNG
AMERICA, INC. ("SAI"), a New York corporation, with a place of business at 14251
east, Firestone Boulevard, La Mirada California, and SAMSUNG CORP. ("SC"), a
Korean corporation with a place of business at 250, 2-Ka, Teapyung-Ro, Chung-Ku,
Seoul, Korea (collectively, the "Samsung"),
RECITALS
WHEREAS, VLT is engaged in development and manufacture of certain video
conferencing systems and desires to market such systems to buyers located in
Korea;
WHEREAS, Samsung, together with its parent and affiliate companies, is
engaged in general trading, marketing and selling various merchandise on a
global basis; and
WHEREAS, VLT desires to appoint Samsung, and Samsung desires to act, as
VLT's exclusive distributor of such system in the geographic area of Korea in
accordance with the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual promises, terms
and conditions hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties do
hereby agree as follows;
I. Definitions.
As used in this Agreement, the following terms shall have the respective
meanings set forth below.
1.1 System.
"System" shall mean that certain video conferencing system developed and
produced by VLT, which consists of various component equipment (the
"Hardware") and certain firmware, computer programs and supporting
documentation (the "Software").
1.2 Proprietary Information.
"Proprietary Information" shall mean any information provided to Samsung by
VLT, whether in connection with this Agreement or otherwise, which is not
publicly known and which is annotated by a legend, stamp or other written
identification as "Proprietary Information."
1.3 Sales Price.
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"Sales Price" shall mean the price of a system or its component, F.O.B.
Louisville, KY U.S.A.
1.4 Territory.
"Territory" shall mean Korea and its territories.
1.5 Trademarks.
"Trademarks" shall mean any and all trademarks and trade names :
(i) listed in exhibit A, and
(ii) which VLT may from time to time add to Exhibit A by written notice to
Samsung.
1.6 Unit.
"Unit" shall mean a user interface card or standalone version of a card,
and its associated portion of the VideoLan switching hub.
II. Appointment.
2.1 Right to Act as Exclusive Distributor.
VLT hereby designates Samsung as its exclusive distributor during the term
of this Agreement to sell and distribute the System and any component
thereof to purchasers located in the Territory, and Samsung hereby accepts
such designation and agrees to use its best effort to, among other things,
promote and sell the maximum number of the System and its component to the
maximum number of customers in the Territory and to protect and enhance the
reputation of VLT and the System on the terms and conditions set forth
herein.
2.2 Territorial Restrictions.
(a) Samsung shall not solicit orders for the System or its components from
any prospective purchaser, or sell the System or its component to any
purchaser located outside the Territory, provided, however, that a sale to
any buyer, not for resale, which is a subsidiary or affiliate of a Korean
company or business entity located outside of the Territory will be deemed
a sale within the Territory, even though the delivery and installation may
take place outside of the Territory.
(b) VLT shall not, directly or indirectly; solicit orders for the System or
its components or sell, or cause to be sold, the System or its component to
any parties other than Samsung in the Territory. In addition, VLT shall
not, directly or indirectly, solicit orders for the System or its
components from any third party or sell, or cause to be sold, the Systems
or its components to any third party if the System or the components are to
be shipped to or installed in the Territory, except where such
installation is an incidental part of a larger installation originating
outside of the Territory. VLT hereby agrees to refer all of such orders
or inquiries to Samsung.
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2.3 Use of Trademarks.
(a) Right to Use. Samsung may use the Trademarks on a non-exclusive basis
only for the duration of this Agreement and solely for display or
advertising purposes in connection with selling and distributing the System
and its component in accordance with this Agreement. Samsung shall not at
any time do or permit any act to be done which may in any way impair the
rights of VLT to the Trademarks.
(b) Quality Control. In order to comply with VLT's quality control
standards, Samsung shall: (i) use the Trademarks in compliance with all
relevant U.S. federal and state laws and regulations; (ii) accord VLT the
right to inspect during normal business hours Samsung's facilities used in
connection with efforts to sell the System in order to conform that
Samsung's use of such Trademarks is in compliance with this provision; and
(iii) not modify any of the Trademarks in any way and not use any of the
Trademarks except as set forth above.
(c) Samsung's Own Marks. Samsung may, with consultation with VLT, choose
and use its own trademarks, logos, brand names, model names and numbers,
and service marks in connection with its sale of the System and its
components in the Territory. In addition, Samsung may in its sole and
absolute discretion establish its own marketing plans and systems, prepare
and circulate in the Territory all sales promotional materials, including
catalogs and brochures, using its own marks.
III. Sales by VLT to Samsung
3.1 Offer and Acceptance.
For each proposed purchase and sale transaction between VLT and Samsung,
Samsung shall present to VLT a purchase order, which shall be deemed an
offer to purchase order (the "Order") shall specify :
(i) the type, size and quantity of the System or its component ordered;
(ii) the desired delivery date;
(iii) the point to which the System or its component shall be delivered
(the "Delivery Point");
(iv) packing instructions, if any; and
(v) any other information which VLT may require from time to time.
3.2 Delivery.
(a) VLT shall use its best efforts to make deliveries in time and at the
delivery point in accordance with the Orders submitted by Samsung.
(b) Unless Samsung requests otherwise, all System or its component shall be
packed for ocean shipment and storage in accordance with internationally
accepted standard commercial practices.
(c) VLT shall; (i) deliver the System to a carrier and obtain a negotiable
bill (s) of lading covering the entire transportation to the Delivery
Point; (ii) loan such System and obtain a receipt from the carrier (which
may be contained in the bill of lading) showing that the freight has been
paid and provided for; (iii) arrange for a certificate of insurance or
notify Samsung
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in advance of the shipment schedule allowing Samsung to obtain appropriate
insurance coverage; (iv) prepare a commercial invoice for such System and
procure any other documents required to effect shipment or to comply with
this Agreement (All of the foregoing documents will be referred to as the
"Title Documents."); and (v) deliver to Samsung all of the Title Documents.
(d) Title and risk of loss and damage to a System or its component shall
pass to Samsung upon delivery of such System to the carrier identified in
Section 3.2 (c) (ii) above.
3.3 Purchase Price.
(a) VLT shall sell each System to Samsung at a price F.O.B. Louisville, KY,
U.S.A.
(b) The Sales Price payable by Samsung to VLT for the System shall be
provided in price schedules (the "Schedule") attached hereto as exhibit B.
VLT may amend the Schedules, upon sixty (60) days advance written notice to
Samsung and consultation with Samsung. The price shown on the Schedules
shall not include any U.S. or any foreign taxes imposed on manufacture,
export, import, sale, purchase or use of the System (the "Taxes"). Samsung
shall pay any such Taxes.
3.4 Sales Volume.
An addendum specifying sales volume will be mutually agreed upon on or
before November 1, 1995. The parties agree that sales volume is currently
estimated to be as follows: year 1 of contract - * Units, year 2 - *
Units, and year 3 - * Units.
3.5 Volume Discount.
The Sales Price payable by Samsung for each Order shall be subject to
volume discount at the following rates:
(a) Order in the amount no more than * :___ *
(b) Order in the amount of * or more, but no more than * : *
(c) Order in the amount of * or more: *
IV. VLT's Obligations.
4.1 Marketing Materials.
VLT shall provide Samsung at no expense to Samsung with catalogues,
maintenance manuals and other descriptive literature in English.
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*Confidential treatment requested.
Omitted portions have been filed separately with the Commission.
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4.2 Export Licenses.
Any and all obligations of Samsung pursuant to this Agreement are expressly
conditioned upon Samsung obtaining from the Korean or any other government
authorities any and all import and use authorizations and licenses that may
be required at the time of import. Samsung shall use reasonable efforts to
obtain such authorizations and licenses.
4.3 Indemnification.
VLT shall indemnify, defend and hold Samsung and all officers, directors,
employees and agents thereof harmless from all claims, including product
liability or intellectual property claims, demands, suits or actions
(including attorneys' fees incurred in connection therewith) which may be
asserted against Samsung relating to or arising from Samsung's use of the
Trademarks, use and sale of the system and its components, and breach by
VLT of any warranties and representations made herein.
V. Product Warranties.
5.1 Limited Warranty of VLT.
(a) As to the System or its components sold by VLT, VLT warrants that the
System and each of its components are free from defects in material and
workmanship and that the System and each of its components will perform in
accordance with their specifications and any written representations made
by VLT for a period of one year from the date of acceptance by Samsung,
regardless of any delay or failure of Samsung to notify VLT thereof.
(b) Any of the System or its components which have a defect or are not in
conformity with the VLT's written representations, specifications or
warranties may be return to VLT at cost of VLT for full refund of the
purchase price and return freight by carrier of choice by VLT.
(c) SECTION 5.1 HEREOF SETS FORTH THE ONLY WARRANTY OF VLT CONCERNING THE
PRODUCTS, AND VLT MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED.
VI. Proprietary Information.
6.1 Confidentiality Maintained.
Samsung agrees that VLT has a proprietary interest in the System. Samsung
shall disclose any Proprietary Information only to those of its agents and
employees to whom it is necessary in order properly to carry out their
duties as limited by the terms and conditions hereof. Both during and
after the term of this Agreement, all disclosures by Samsung to its agents
and employees shall be held in strict confidence by such agents and
employees. During the term of this Agreement, Samsung, its agents and
employees shall not use such Proprietary Information for any purpose other
than in connection with Samsung's sale and distribution of
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the System in the territory pursuant to this Agreement.
6.2 Non-Use After Termination
Samsung, its agents and employees shall not use the Proprietary Information
after termination of this Agreement except in connection with the sale of
the System inventory on hand on the date of such termination under Article
VLT hereof.
VII. Termination.
7.1 Term of Agreement.
This agreement shall become effective upon the execution hereof by the
parties hereto and shall continues in full force and effect for three (3)
years thereafter. Prior to one (1) month before the expiration of the
initial term, the parties will negotiate additional terms and conditions on
which the Agreement may be extended for an additional term.
7.2
Nor withstanding any provision hereof, either party shall have the absolute
right to immediately terminate this Agreement in the event that any of the
following events occurs;
(a) Default by the other party in any of its material obligations owned to
the non-defaulting party unless such default is corrected within thirty
(30) days after notice thereof had been given to the defaulting party;
(b) Actual, imminent or threatened insolvency of the other party,
commission by the other party of an act of bankruptcy, the making of an
assignment for the benefit of its creditors, suspension of its usual
business activities or of payments, the calling of a meeting of creditors,
or the offer to or receipt from any creditor, of a composition or extension
of any of its indebtedness, the making or sending of notice of an intended
bulk sale, or the liquidation or dissolution of its usual business;
(c) Commencement of any proceedings in bankruptcy, or any proceeding, suit
or action at law, in equity, or under any laws or regulations of any
jurisdiction, for adjudication as a bankrupt, reorganization, composition,
extension, wage earner plans, receivership, liquidation, or dissolution by,
of, or against the other party; and
(d) Making by the other party of any misrepresentation of a material fact.
7.3 Consequences Upon Termination.
In the event of termination of this Agreement for any reason;
(a) Nothing shall be construed (i) to release Samsung from any of its
obligations or liabilities to VLT hereunder (including without limitation
its obligation to pay VLT any and all amounts accrued hereunder prior to
the date of such termination or due by reason of shipments made pursuant to
subsection (ii) hereof) and (ii) to release VLT from its obligation to
complete and
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ship the System orders for which were accepted by VLT in accordance with
paragraph 3.1 hereof prior to the date of such termination.
(b) Samsung shall have the right to sell any System or its component
remaining in its inventory (or shipped pursuant to subsection (a) hereof)
in the Territory within the remainder of the month in which the termination
occurs and during the five (5) calendar months thereafter, subject to the
terms and conditions of this Agreement in effect immediately prior to such
termination.
VIII. Localization of Manufacturing.
The parties hereby mutual agree that it will be in their best interest in
the future to have the System or its components manufactured in Korea by
Samsung or its affiliates for sale in the Territory as well as export sale
outside the Territory. The parties hereby agree to consider and study the
feasibility of such local manufacturing and cooperate with each other for
accomplishment of the same.
IX. General Provision.
9.1 Assignments.
(a) This Agreement and any and all of the rights and obligations of either
party hereunder shall not be assigned, delegated, sold, transferred,
sublicensed or otherwise disposed of by operation of law or otherwise,
without the prior written consent of the other party. Any attempted
assignment, delegation, sale, transfer, sublicense or otherwise
disposition, by operation of law or otherwise, of this Agreement or of any
rights or obligations hereunder contrary to this Section 8.1 shall be void.
(b) This Agreement shall be binding upon, and inure to the benefit of, each
party and its respective successors and assigns, to the extent such
assignments are in accordance with this Section 8.1.(a).
9.2 Governing Law.
This Agreement shall be governed, interpreted and construed in accordance
with the laws of the Republic of Korea, and shall be interpreted and
construed in accordance with normal usage of English in the Republic of
Korea.
9.3 Waiver.
A waiver of any breach or any provision of this Agreement shall not be
construed as a continuing waiver of other breaches of the same or other
provisions of this Agreement.
9.4 No other Relationship.
Nothing herein contained shall be deemed to create any employment, agency,
franchise, joint
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venture or partnership relationship between the parties hereto. Neither
party shall have any power to enter into any contracts or commitments in
the name of, or on behalf of, the other party, or to bind the other party
in any respect whatsoever.
9.5 Notices.
Any notices hereunder may be given to a party at the address for such party
set forth in the first paragraph hereof, and shall be deemed received ten
(10) days after deposit into international air mail, first class and
postage prepaid or, upon delivery, if personally delivered, or upon
sending, if sent by telex or telecopy transmission and confirmed within ten
(10) days by international air mail.
9.6 Entire Understanding.
This agreement embodies the entire understanding between the parties
relating to the subject matter hereof, and there are no prior
representations, warranties or agreements, whether written or oral, between
the parties not contained in this Agreement.
9.7 Severability.
If any provision of this Agreement is declared invalid or unenforceable by
a court having competent jurisdiction, it is mutually agreed that this
Agreement shall endure except for the part declared invalid or
unenforceable under competent law. The parties shall consult and use their
best efforts to agree upon a valid and enforceable provision which shall be
a reasonable substitute for such invalid or unenforceable provision in
light of the intent of this Agreement.
9.8 Amendments.
Any amendments or modifications of any provision of this Agreement must be
in writing, dated and signed by both parties hereto.
9.9 Attorney's Fees.
In the event of a dispute arising out of or in connection with this
Agreement, the party prevailing in such dispute shall be entitled to its
reasonable costs and attorneys' fees in addition to all other relief to
which it may be entitled.
9.10 Force Majeure.
Neither VLT nor Samsung shall be liable in damages, or shall be subject to
termination of this Agreement by the other party, for any delay or default
in performing any obligation hereunder if that delay or default is due to
any act of God, act of any government or other authority or statutory
undertaking, industrial dispute, fire, explosion, accident, power failure,
flood, riot or war (declared, or undeclared); provided, however, that in
order to excuse its delay or default hereunder, a party shall notify the
other of the occurrence or the cause within fourteen (14) days from the
date of such occurrence, specifying the nature and particulars thereof and
the expected duration thereof; and provided, further, that within fifteen
(15) calendar days after the termination of such occurrence or cause, such
party shall give notice to the other party
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specifying the date of termination thereof and all obligations of both
parties shall again be in full force and affect.
9.11 Counterparts.
This Agreement may be executed in any number of counterparts and each such
counterpart shall be deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement.
VIDEOLAN TECHNOLOGIES, INC. SAMSUNG CORPORATION
By: /s/ John E. Haines By: /s/ Alex Jang
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Name: John E. Haines Name: Alex Jang
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Title: CEO Title: General Manager
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By: /s/ Vernon L. Jackson SAMSUNG AMERICA, INC.
-----------------------------------
Name: Vernon L. Jackson By: /s/ Yong W. Koo
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Title: President Name: Yong W. Koo
--------------------------------- --------------------------
Title: General Manager
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Addendum A to Exclusive Distribution Agreement
THIS ADDENDUM TO EXCLUSIVE DISTRIBUTION AGREEMENT is entered into by and
between VIDEOLAN TECHNOLOGIES, INC., a Delaware corporation with its principal
place of business at 100 Mallard Creek Road, Suite 250, Louisville, Kentucky
40207; and Samsung Corporation with a place of business at 250, 2-Ka, Taepyung
Chung-Ku, Seoul, Korea.
Paragraph 3.4 Sales Volume: Sales Volumes have been agreed by both parties
to be *units, *units, * units, for the first, second, third calendar years of
the contract, respectively.
VideoLan Technologies, Inc. Samsung Corporation
By: /s/ John E. Haines By: /s/ Alex Jang
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Name: John E. Haines Name: Alex Jang
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Title: CEO Title: General Manager
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Date: October 27, 1995 Date: 95-27-Oct
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By: /s/ Vernon L. Jackson By:
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Name: Vernon L. Jackson Name: Yong W. Koo
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Title: President Title: General Manager
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Date: Oct. 27, 1995 Date:
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*Confidential treatment requested.
Omitted portions have been filed separately with the Commission.
