SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 27,
1997
VIDEOLAN TECHNOLOGIES, INC.
(Exact name of registrant as specified in charter)
Delaware 000-26302 611283466
(State or other (Commission File Number) (IRS Employer
jurisdiction or Identification
incorporation) No.)
11403 Bluegrass Parkway, Suite 400
Louisville, Kentucky 40299
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 502) 266-0099
Not Applicable
(Former name or former address
if changed since last report.)
INFORMATION TO BE INCLUDED IN THE REPORT
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
Exhibit 3.1, 4.1 -- Certificate of Incorporation,
incorporated by reference as an exhibit to the
Registration Statement on Form SB-2, as amended, filed
by the Company (File No. 32-93086).
Exhibit 3.2, 4.2 -- Certificate of Amendment to Certificate
of Incorporation, incorporated by reference as an
exhibit to the 1996 Annual Report on Form 10-KSB (File
No. 0-26302 ).
Exhibit 3.3, 4.3 -- Bylaws of the Company, incorporated by
reference as an exhibit to the Registration Statement
on Form 8-A dated January 29, 1997 (File No. 0-26302).
Exhibit 4.4 -- Form of 8% Convertible Debenture due December
31, 1998 (the "Debenture").
Item 9. Sale of Debentures Pursuant to Regulation S.
(a) Securities Sold. On October 27, 1997 the Registrant
issued a $200,000.00 8% Convertible Debenture due
December 31, 1998.
(b) Underwriters and Other Purchasers. The Registrant did
not engage an underwriter in connection the issuance of
the Debentures. The Debentures were purchased by non-U.S.
Persons (as such term is defined in Regulation S
("Regulation S") under the Securities Act of 1933, as
amended ("Securities Act")). The purchasers are
"accredited investors" as defined in Rule 501(a) in
Regulation D under the Securities Act.
(c) Consideration. The Registrant issued the Debenture for
cash consideration. The Registrant is obligated to pay
Michael Heitz a consulting fee in the aggregate amount
of $4,000.
(d) Exemption from Registration Claimed. The Debentures
were issued in accordance with the provisions of
Regulation S in an Offshore Transaction to a non-U.S.
Person.
(e) Terms of Conversion or Exercise.
The terms of the Debenture provide for interest on the
Debenture at the rate of Eight percent (8.0%) per year
payable until the Debenture has been converted.
Purchaser, at its option, may convert all the principal
amount of the Debenture, plus accrued interest,
provided the principal amount is at least $10,000, into
Common Stock at any time after November 8, 1997, at a
conversion price for each share of Common Stock equal
to eighty percent 80% of the Closing Bid Price (as that
term is defined below) for the five trading days
immediately preceding (i) the date of issuance of the
Debenture or (ii) the date of conversion of the
Debenture. The term "Closing Bid Price" shall mean the
closing bid price of the Company's Common Stock as
reported by NASDAQ (or, if not reported by NASDAQ, as
reported by such other exchange or market where
traded).
The discussion at this Item 701(e) is qualified in its
entirety by reference to the Debenture attached to this
Form 8-K as an exhibit.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
VIDEOLAN TECHNOLOGIES, INC.
By:/s/ Steven B. Rothenberg
Steven B. Rothenberg
Executive Vice President,
Treasurer And Chief Financial
Officer
Date: November 24, 1997
Exhibit 4.4
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE
UPON CONVERSION HEREOF HAVE BEEN REGISTERED WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE OR UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES ARE
RESTRICTED AND MAY NOT BE OFFERED, RESOLD, PLEDGED OR
TRANSFERRED EXCEPT IN ACCORDANCE WITH REGULATION S
UNDER THE ACT, OR AS PERMITTED UNDER THE ACT PURSUANT
TO REGISTRATION OR EXEMPTION OR SAFE HARBOR THEREFROM.
No. ***1*** US $200,000.00
VIDEOLAN, INC.
8% Convertible Debenture Due December 31, 1997
THIS DEBENTURE is one of a duly authorized issue of
$1,200,000 in Debentures of VideoLan, Inc., a corporation duly
organized and existing under the laws of the State of Delaware
(the "Company") designated as its 8% Convertible Debentures Due
December 31, 1998.
FOR VALUE RECEIVED, the Company promises to pay to Thomson
Kernaghan & Co. Ltd., as Nominee, the registered holder hereof
(the "Holder"), the principal sum of Two Hundred Thousand United
States Dollars (US $200,000.00) on Dec. 31, 1998 (the "Maturity
Date"), and to pay interest on the principal sum outstanding from
time to time in arrears on July 31, 1998 at the rate of 8% per
annum accruing from the date of initial issuance. Accrual of
interest shall commence on the first such business day to occur
after the date hereof until payment in full of the principal sum
has been made or duly provided for. Subject to the provisions of
paragraph 4 below, the principal of and interest on this
Debenture are payable at the option of the Company, in shares of
Common Stock of the Company or in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts, at the address
last appearing on the Debenture Register of the Company as
designated in writing by the Holder from time to time. The
Company will pay the principal of and interest upon this
Debenture on the Maturity Date, less any amounts required by law
to be deducted, to the registered holder of this Debenture as of
the tent day prior to the Maturity Date and addressed to such
holder as the last address appearing on the Debenture Register.
The forwarding of such check shall constitute a payment of
interest hereunder and shall satisfy and discharge the liability
for principal and interest on this Debenture to the extent of the
sum represented by such check plus any amounts so deducted.
This Debenture is subject to the following additional provisions:
1. The Debentures are issuable in denominations of at least
Ten Thousand Dollars ($10,000, U.S.) and integral multiples
thereof. The Debentures are exchangeable for an equal aggregate
principal amount of Debentures of different authorized
denominations, as requested by the Holders surrendering the same.
No service charge will be made for such registration of transfer
or exchange.
2. The Company shall be entitled to withhold from all
payments of principal of, and interest on, this Debenture any
amounts required to be withheld under the applicable provisions
of the United States income tax laws or other applicable laws at
the time of such payments, and Holder shall execute and deliver
all required documentation in connection therewith.
3. This Debenture has been issued subject to investment
representations of the original purchaser hereof and may be
transferred or exchanged only in compliance with the Securities
Act of 1933, as amended (the "Act"), and other applicable state
and foreign securities laws. In the event of any proposed
transfer of this Debenture, the Company may require, prior to
issuance of a new Debenture in the name of such other person,
that it receive reasonable transfer documentation including
opinions that the issuance of the Debenture in such other name
does not and will not cause a violation of the Act or any
applicable state or foreign securities laws. Prior to due
presentment for transfer of this Debenture, the Company and any
agent of the Company may treat the person in whose name this
Debenture is duly registered on the Company's Debenture Register
as the owner hereof for the purpose of receiving payment as
herein provided and for all other purposes, whether or not this
Debenture be overdue, and neither the Company nor any such agent
shall be affected by notice to the contrary.
4. The Holder of this Debenture is entitled, at its option,
to convert at any time all of the principal amount of the
Debenture, plus accrued interest, commencing forty-one (41)
calendar days after the closing of the sale of the Debenture (the
"Closing"), provided that the principal amount is at least US
$10,000 (unless if at the time of such election to convert the
aggregate principal amount of all Debentures registered to the
Holder is less than Ten Thousand Dollars [US $10,000], then the
whole amount thereof) into shares of Common Stock of the company
at a conversion price for each share of Common Stock equal to
eighty percent 80% of the Market Price on the Conversion Date.
For purposes of this Section 4, the Market Price shall be the
average closing bid price of the Common Stock on the five (5)
trading days immediately preceding the Conversion Date, as
reported by the National Association of Securities Dealers for
companies trading over-the-counter market or, in the event the
Common Stock is listed on a stock exchange, the Market Price
shall be the average closing bid price of the Common Stock on
such stock exchange on the five (5) trading days immediately
preceding the Conversion Date, as reported in the Wall Street
Journal. Conversion shall be effectuated by surrendering the
Debentures to be converted to the Company with the form of
conversion notice attached as Exhibit "A," executed by the Holder
of the Debenture evidencing such Holder's intention to convert
this Debenture or a specified portion (as above provided) hereof,
and accompanied, if required by the Company, by proper assignment
hereof in blank. Interest accrued or accruing from the date of
issuance to the date of conversion shall, at the option of the
Company, be paid in cash or Common Stock upon conversion. No
fraction of Shares or scrip representing fractions of shares will
be issued on conversion, but the number of shares issuable shall
be rounded to the nearest whole share. The date on which notice
of conversion is given (the "Conversion Date") shall be deemed to
be the date on which the Holder has delivered this Debenture,
with the conversion notice duly executed to the Company or if
earlier, the date set forth in such notice of conversion if the
Debenture is received by the Company within three (3) business
days therefrom. Facsimile delivery of the conversion notice
shall be accepted by the Company at telephone number (813) 535-0077.
Certificates representing Common Stock upon conversion will be
delivered within two (2) business days from the date the notice of
conversion is delivered to the Company.
5. No provision of this Debenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on, this Debenture at the
time, place and rate, and in the coin or currently herein
prescribed. This Debenture and all other Debentures now or
hereafter issued of similar terms are direct obligations of the
Company.
6. No recourse shall be had for the payment of the
principal of, or the interest on, this Debenture or for any claim
based hereon, or otherwise in respect hereof, against any
incorporator, shareholder, officer or director, as such, past,
present or future, of the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all
such liability being, but the acceptance hereof and as part of
the consideration for the issues hereof, expressly waived and
released.
7. If the Company merges or consolidates with another
corporation or sells or transfers all or substantially all of its
assets to another person and the holders of the Common Stock are
entitled to received stock, securities or property in respect of
or in exchange for Common Stock, then as a condition of such
merger, consolidation, sale or transfer, the company and any such
successor, purchaser or transferee shall amend this Debenture to
provide that it may thereafter be converted on the terms and
subject to the conditions set forth above into the kind and
amount of stock, securities or property receivable upon such
merger, consolidation, sale or transfer by a holder of the number
of shares of Common Stock into which this Debenture might have
been converted immediately before such merger, consolidation,
sale or transfer, subject to adjustments which shall be a nearly
equivalent as may be practicable. In the event of any proposed
merger, consolidation or sale or transfer of all or substantially
all of the assets of the Company (a "Sale"), the Holder hereof
shall have the right to convert by delivering a Notice of
Conversion to the Company within fifteen (15) days of receipt of
notice of such Sale from the Company. In the event the Holder
hereof shall elect not to convert, the Company may prepay all
outstanding principal and accrued interest on this Debenture,
less all amounts required by law to be deducted, upon which
tender of payment following such notice, the right of conversion
shall terminate.
8. The Holder of the Debenture, by acceptance hereof,
agrees that this Debenture is being acquired for investment and
that such Holder will not offer, sell or otherwise dispose of
this Debenture or the Shares of Common Stock issuable upon
conversion thereof except under circumstances which will not
result in a violation of the Act or any applicable state Blue Sky
or foreign laws or similar laws relating to the sale of
securities.
9. The Debenture shall be governed by and construed in
accordance with the laws of Canada; provided however, that if any
provision of this Debenture is unenforceable under the laws of
Canada but is enforceable under the laws of the Commonwealth of
Kentucky, then that provision shall be governed by and construed
in accordance with the laws of Kentucky. Any controversy or
claim arising out of or relating to this Debenture (whether in
contract or tort, or both) shall be determined by binding
arbitration at Toronto, Canada, in accordance with the commercial
arbitration rules of the International Chamber of Commerce. The
prevailing party in any arbitration proceeding shall be awarded
reasonable attorneys fees and costs of the proceeding. The
arbitration award shall be final, and may be entered in any court
having jurisdiction.
10. The following constitute and "Event of Default":
a. The Company shall default in the payment of principal
or interest on this Debenture; or
b. Any of the representations or warranties made by the
Company herein, in the Subscription Agreement, or in any
certificate or financial or other written statements heretofore
or hereafter furnished by the Company in connection with the
execution and deliver of this debenture or the Subscription
Agreement shall be false or misleading in any material respect at
the time made; or
c. The Company shall fail to perform or observe, in any
material respect, any other covenant, term, provision, condition,
agreement or obligation of the Company under this Debenture and
such failure shall continue uncured for a period of thirty (30)
days after written notice from the Holder of such failure; or
d. The Company shall (1) admit in writing its inability to
pay its debts generally as they mature; (2) make an assignment
for the benefit of creditors or commence proceedings for its
dissolution; or (3) apply for or consent to the appointment of a
trustee, liquidator or receiver for it or for a substantial part
of its property or business; or
e. A trustee, liquidator or receiver shall be appointed
for the Company or for a substantial part of its property or
business without its consent and shall not be discharged within
sixty (60) days after such appointment;
f. Any governmental agency or any court of competent
jurisdiction at the instance of any governmental agency shall
assume custody or control of the whole or any substantial portion
of the properties or assets of the Company and shall not be
dismissed within sixty (60) days thereafter;
g. Any money judgment, writ or warrant of attachment, or
similar process in excess of Two Hundred Thousand Dollars
($200,000) in the aggregate shall be entered or filed against the
Company or any of its properties or other assets, and shall
remain unpaid, unvacated, unbonded or unstayed for a period of
sixty (60) days in or in any event later than five (5) days prior
to the date of any proposed sale thereunder; or
h. Bankruptcy, reorganization, insolvency or liquidation
proceedings or other proceedings for relief under any bankruptcy
law or any law for the relief of debtors shall be instituted by
or against the Company and, if instituted against the Company,
shall not be dismissed within one hundred twenty (120) days after
such institution or the Company shall by any action or answer
approve of, consent to, or acquiesce in any such proceedings or
admit the material allegations of, or default in answering a
petition filed in any such proceeding; or
i. The Company shall have its Common Stock suspended or
delisted from an exchange or over-the-counter market from
trading.
Then, or at any time thereafter, and in each and every case,
unless such Event of Default shall have been waived in writing by
the Holder (which waiver shall not be deemed to be a waiver of
any subsequent default) at the option of the Holder and in the
Holder's sole discretion, the Holder may consider this Debenture
immediately due and payable, without presentment, demand, protest
or notice of any kind, all of which are hereby expressly waived,
anything herein or in any note or other instruments contained to
the contrary notwithstanding, and the Holder may immediately
enforce any and all of the Holder's rights and remedies provided
herein or any other rights or remedies afforded by law.
11. Nothing contained in this Debenture shall be construed
as conferring upon the Holder the right to vote or to receive
dividends or to consent or receive notice as a shareholder in
respect of any meeting of shareholders or any rights whatsoever
as a shareholder of the Company, unless and to the extent
converted in accordance with the terms hereof.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed by an officer thereunto duly authorized.
Dated: October 27, 1997
VideoLan Technologies, Inc.
By: /s/ Steven Rothenberg
STEVEN ROTHENBERG
(Print Name)
SR. VICE PRESIDENT FINANCE
(Title)
ATTEST:
/s/ Kathy Nickel
EXHIBIT "A"
NOTICE OF CONVERSION
(To be executed by the Registered Holder in order to Convert the
Debenture)
The undersigned hereby irrevocably elects to convert
$_______________ of the principal amount of the above Debenture
No. _____ into Shares of Common Stock of VideoLan Technologies,
Inc. (the "Company") according to the conditions hereof, as of
the date written above.
The undersigned represents that it is not a U.S. Person as
defined in Regulation S promulgated under the Securities Act of
1933 and is not converting the Debentures on behalf of any U.S.
Person.
Date of Conversion______________________________________________
Applicable Conversion Price______________________________________
Signature________________________________________________________
(Name)
Address:_________________________________________________________
_________________________________________________________
