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): January 29, 1997
VIDEOLAN TECHNOLOGIES, INC.
(Exact Name of Registrant as specified in Charter)
Delaware 0-26302 61-1283466
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification
incorporation) No.)
100 Mallard Creek Road, Suite 250
Louisville, Kentucky 40207
(Address of principal executive offices) (Zip code)
Registrant's telephone number,
including area code: (502) 895-4858
N/A
(Former name or former address, if changed since last report.)
INFORMATION TO BE INCLUDED IN THE REPORT
Item 5. Other Events
On January 29, 1997, the Board of Directors of VideoLan
Technologies, Inc. (the "Company") declared a dividend of one
Junior Participating Preferred Stock Purchase Right on each
outstanding share of the Company's common stock, as set forth in
the Rights Agreement dated as of January 29, 1997, between the
Company and Continental Stock Transfer & Trust Company. The
dividend distribution will be made on February 8, 1997, payable to
shareholders of record on that date.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
(a) Financial Statements of Business Acquired.
Not Applicable.
(b) Pro Forma Financial Information.
Not Applicable
(c) Exhibits.
The following exhibits are filed with this Report on Form 8-K:
REGULATION S-K
EXHIBIT NUMBERS EXHIBIT
3.1 By-laws.
4.1 and 10.1 Rights Agreement dated January 29, 1997
between VideoLan Technologies, Inc. and
Continental Stock Transfer & Trust Company
is incorporated by reference to Exhibit B
to Registration Statement on Form 8-A
dated January 29, 1997.
99 Press Release dated January 29, 1997.
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.
Date: January 29, 1997 By /s/ Jack Shirman
Chief Executive Officer
VIDEOLAN TECHNOLOGIES, INC.
A Delaware Corporation
BY-LAWS
ARTICLE I
Stockholders
1. Annual Meeting.
An annual meeting of stockholders for the purpose of electing
directors and of transacting such other business as may come before
shall be held each year at such date, time and place, either within
or without the State of Delaware, as may be specified by the Board
of Directors.
2. Special Meetings.
Special meetings of stockholders for any purpose or purposes
may be hold at any time upon call of the Chairman of the Board, the
Vice-Chairman, if any, the President, the Secretary, or a majority
of the Board of Directors, at such time and place either within or
without the State of Delaware as may be stated in the notice.
3. Notice of Meetings.
Written notice of stockholders meetings, stating the place,
date and hour thereof, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be given
by the Chairman of the Board, the Vice-Chairman, if any, the
President, any Vice President, the Secretary, or an Assistant
Secretary, to each stockholder entitled to vote thereat at least
ten days but not more than sixty days before the date of the
meeting, unless a different period is prescribed by law.
4. Quorum.
Except as otherwise provided by law or in the Certificate of
Incorporation or these By-Laws, at any meeting of stockholders, the
holders of shares of capital stock entitled to cast a majority of
the votes entitled to be cast at the meeting shall be Present or
represented by proxy in order to constitute a quorum for the
transaction of any business. In the absence of a quorum, a
majority in interest of the stockholders present or the chairman of
the meeting may adjourn the meeting from time to time in the manner
provided in Article 1, Section 5 of these By-Laws until a quorum
shall attend.
5. Adjournment.
Any meeting of stockholders, annual or special, may adjourn
from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation
may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days,
or if after the adjournment a now record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
6. Organization.
The Chairman of the Board, or in his absence the Vice-Chairman, if
any, or in their absence the President, or in their absence any Vice
President, shall call to order meetings of stockholders and shall act as
chairman of such meetings. The Board of Directors or, if the Board falls
to act, the stockholders may appoint any stockholder, director or officer
of the Corporation to act as chairman of any meeting in the absence of the
Chairman of the Board, the Vice-Chairman, if any, the President, and all Vice
Presidents.
The Secretary of the Corporation shall act as secretary of all
meetings of stockholders, but, in the absence of the Secretary, the
chairman of the meeting may appoint any other person to act as
secretary of the meeting.
7. Voting.
Except as otherwise provided by the Delaware General Corporation Law
or in the Certificate of Incorporation or these By-Laws and except for the
election of directors, at any meeting duly called and hold at which a quorum
is present, a majority of the votes cost at such meeting upon a given
question by the holders of outstanding shares of stock of the Corporation
entitled to vote thereon who are present in person or by proxy shall decide such
question; provided, however, if a separate vote by a class or classes is
required, a majority of the votes cast at such meeting by the holders of
outstanding shares of stock of each such class shall decide such question
for such class. At any meeting duly called and held for the election of
directors at which a quorum is present, directors shall be elected by a
plurality of the votes cast by the holders (acting as such) of shares of
stock of the Corporation entitled to elect such directors.
8. Consent of Stockholders in Lieu of Meeting.
(a) Any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of the
stockholders, may be taken without prior notice and without a vote,
if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be
delivered to the Corporation by delivery to its registered office
in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be made by hand
or by certified or registered mail, return receipt requested.
(b) Every written consent shall bear the date of
signature of each stockholder who signs the consent and no written
consent shall be effective to take the corporate action referred to
therein unless, within sixty (60) days of the date the earliest
dated consent is delivered to the Corporation, a written consent or
consents signed by a sufficient number of holders to take action
are delivered to the Corporation in the manner prescribed in
paragraph (a) of this Section.
(c) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days
after the date upon which the resolution fixing the record date is
adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorize or take corporate action
by written consent shall, by written notice to the Secretary,
request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within ten (10) days
after the date on which such a request is received, adopt a
resolution fixing the record date. If no record date has been
fixed by the Board of Directors within ten (10) days of the date on
which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors
is required by applicable law, shall be the first date on which a
signed written consent setting forth the actions taken or proposed
to be taken is delivered to the Corporation in accordance with
paragraphs (a) and (b) of this Section. If no record date has been
fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the
date on which the Board of Directors adopts the resolution taking
such prior action.
(d) Within five (5) business days after receipt of the
earliest dated consent delivered to the Corporation in the manner
provided in paragraph (a) of this Section, the Corporation shall
retain nationally recognized independent inspectors of elections
for the purposes of performing a ministerial review of the validity
of consents and any revocations thereof. The cost of retaining
inspectors of election shall be borne by the Corporation.
(e) At any time that stockholders soliciting consents in
writing to corporate action have a good faith belief that the
requisite number of valid and unrevoked consents to authorize or
take the action specified has been received by them, the consents
shall be delivered by the soliciting stockholders to the
Corporation's registered office in the State of Delaware or
principal place of business or to the Secretary of the Corporation,
together with a certificate stating their belief that the requisite
number of valid and unrevoked consents has been received as of a
specific date, which date shall be identified in the certificate.
In the event that delivery shall be made to the Corporation's
registered office in Delaware, such delivery shall be made by hand
or by certified or registered mail, return receipt requested. Upon
receipt of such consents, the Corporation shall cause the consents
to be delivered promptly to the inspectors of election. The
Corporation also shall deliver promptly to the inspectors of
election any revocations of consents in its possession, custody or
control as of the time of receipt of the consents.
(f) As promptly as practicable after the consents and
revocations are received by them, the inspectors of election shall
issue a preliminary report to the Corporation stating: (i) the
number of shares represented by valid and unrevoked consents; (ii)
the number of shares represented by invalid consents; (iii) the
number of shares represented by invalid revocations; and (iv) the
number of shares entitled to submit consents as of the record date.
Unless the Corporation and the soliciting stockholders agree to a
shorter or longer period, the Corporation and the soliciting
stockholders shall have five (5) days to review the consents and
revocations and to advise the inspectors and the opposing party in
writing as to whether they intend to challenge the preliminary
report. If no timely written notice of an intention to challenge
the preliminary report is received, the inspectors shall certify
the preliminary report (as corrected or modified by virtue or the
detection by the inspectors of clerical errors) as their final
report and deliver it to the Corporation. If the Corporation or
the soliciting stockholders give timely written notice of an
intention to challenge the preliminary report, a challenge session
shall be scheduled by the inspectors as promptly as practicable.
A transcript of the challenge session shall be recorded by a
certified court reporter. Following completion of the challenge
session, the inspectors shall issue as promptly as practicable
their final report and deliver it to the Corporation. A copy of
the final report shall be included in the book in which the
proceedings of meetings of stockholders are required.
(g) The Corporation shall give prompt notice to the
stockholders of the results of any consent solicitation or the
taking of corporate action without a meeting by less than unanimous
written consent.
(h) This Section shall in no way impair or diminish the
right of any stockholder or director, or any officer whose title to
office is contested, to contest the validity of any consent or
revocation thereof, or to take any other action with respect
thereto.
9. Advance Notice Procedures.
(a) General. The business to be conducted at any
meeting of stockholders of the Corporation shall be limited to such
business and nominations as shall comply with the procedures set
forth in this Article I and in Article II of these By-laws.
(b) Notification of Stockholder Business. At any
special meeting of stockholders only such business shall be
conducted as shall have been set forth in the notice of special
meeting. At an annual meeting of stockholders, only such business
shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business
must be (i) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors,
(ii) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (iii) otherwise (a)
properly requested to be brought before the meeting by a
stockholder of record entitled to vote in the election of directors
generally, and (b) constitute a proper subject to be brought before
such meeting.
For business (other than the election of directors) to be
properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice
must be either delivered to or mailed and received at the principal
executive offices of the Corporation not later than 90 days in ad-
vance of such meeting. A stockholder's notice to the Secretary
shall set forth as to each matter (other than the election of
directors) the stockholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting
such business at the annual meeting, (b) the name and address, as
they appear on the Corporation's books, of the stockholder
intending to propose such business, (c) the class and number of
shares of capital stock of the Corporation which are beneficially
owned by the stockholder, (d) a representation that the stockholder
is a holder of record of capital stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy
at the meeting to present such business, and (e) any material
interest of the stockholder in such business.
Notwithstanding anything in the By-laws to the contrary, no
business shall be conducted at any annual meeting except in ac-
cordance with the procedures set forth in this Article I, Section
9. The chairman of the annual meeting shall, if the facts warrant,
determine and declare to the meeting that (i) the business proposed
to be brought before the meeting was not a proper subject therefor
and/or (ii) such business was not properly brought before the
meeting and in accordance with the provisions of this Section, and,
if he should so determine, he shall so declare to the meeting and
any such business not properly brought before the meeting or not a
proper subject therefor shall not be transacted.
(c) Meeting Delay. For purposes of this Article I, Section
9, and Section 3 of Article I of these By-laws, reference to a re-
quirement to deliver notice or information to the Corporation a set
number of days in advance of an annual meeting shall mean that such
notice must be delivered such number of days in advance of the
first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is
advanced by more than 30 days or delayed by more than 60 days from
the first anniversary of the preceding year's annual meeting,
notice by the stockholder to be timely must be so delivered not
later than the close of business on the later of the 60th day prior
to such annual meeting or the 10th day following the day on which
notice of such meeting is first given to stockholders. For
purposes of these By-laws, notice shall be deemed to be first given
to stockholders when disclosure of such date is first made in a
press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Securities
Exchange Act of 1934.
ARTICLE II
BOARD OF DIRECTORS
1 Number and Term of Office.
The business, property. and affairs of the Corporation shall
be managed by or under the direction of the Board of three
directors; provided, however, that the Board, by resolution adopted
by vote of a majority of the then authorized number of directors,
may increase or decrease the number of directors. The directors
shall be elected by the holders of shares entitled to vote thereon
at the annual meeting of stockholders, and each shall serve
(subject to the provisions of Article IV) until the next succeeding
annual meeting of stockholders and until his respective successor
has been elected and qualified.
2. Meetings.
Regular meetings of the Board of Directors may be hold without
notice at such time and place as shall from time to time be
determined by the Board.
Special meetings of the Board of Directors shall be held at
such time and place as shall be designated in the notice of the
meeting whenever called by the Chairman of the Board, the Vice-Chairman,
if any, the President, or by a majority of the directors then in office.
3. Notice of Special Meetings.
The Secretary, or in his absence any other officer of the
Corporation, shall give each director notice of the time and place
of holding of special meetings of the Board of Directors by mall at
least three days before the meeting, or by telegram, cable,
radiogram, or personal service at least one day before the meeting.
Unless otherwise stated in the notice thereof, any and all business
may be transacted at any meeting without specification of such
business in the notice.
4. Quorum and Organization of Meetings.
A majority of the total number of members of the Board of
Directors as constituted from time to time shall constitute a
quorum for the transaction of business, but, if at any meeting of
the Board of Directors (whether or not adjourned from a previous
meeting) there shall be less then a quorum present, a majority of
those present may adjourn the meeting to another time and place,
and the meeting may be held as adjourned without further notice of
waiver. Except as otherwise provided by law or in the Certificate
of Incorporation or these By-Laws, a majority of the directors
present at any meeting at which a quorum Is present may decide any
question brought before such meeting. Meetings shall be presided
over by the Chairman of the Board, or in his absence by the Vice-Chairman,
if any, or in their absence by the President, or in their absence by such
other person as the directors may select. The Secretary of the Corporation
shall act as secretary of the meeting, but in his absence the chairman of
the meeting may appoint any person to act as secretary of the meeting.
5. Committees.
The Corporation shall have an audit committee, a compensation
committee and such other committees as the Board of Directors may,
by resolution passed by a majority of the whole Board. designate.
Each committee shall consist of two or more of the directors of the
Corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act
at the meeting in place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
Board of Directors, and except as provided in the Delaware General
Corporation Law, shell have and may exercise all the powers and
authority of the Board of Directors in the management of the
business, property, and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers
which may require it. Each committee which may be established by
the Board of Directors pursuant to these By-Laws may fix its own
rules and procedures. Notice of meetings of committees, other then
of regular meetings provided for by the rules, shall be given to
committee members. All action taken by committees shall be
recorded in minutes of the meetings.
6. Action Without Meeting.
Nothing contained in these By-Laws shall be deemed to restrict
the power of members of the Board of Directors or any committee
designated by the Board to take any action required or permitted to
be taken by them without a meeting.
7. Telephone Meetings.
Nothing contained in these By-Laws shall be deemed to restrict
the power of members of the Board of Directors, or any committee
designated by the Board, to participate in a meeting of the Board,
or committee, by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other.
8. Notification of Nominations.
Except for directors selected by or pursuant to the provisions
of the Certificate of Incorporation or any resolution of the Board
of Directors set forth in a Certificate of Designation in effect
relating to the rights of the holders of any class or series of
stock of the Corporation having a preference over the Common Stock
as to dividends or upon liquidation to elect directors under
specified circumstances, or for directors elected pursuant to the
provisions of Article V, Section 3 [Vacancies] hereof, only
individuals nominated for election to the Board of Directors
pursuant to and in accordance with the provision of this Article
II, Section 8 may be elected to and may serve upon the Board of
Directors of the Corporation. Subject to the rights of holders of
any class or series of stock of the Corporation having a preference
over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, nominations for the
election of directors may be made by the Board of Directors or by
any stockholder entitled to vote in the election of directors
generally. Subject to the foregoing, only a stockholder of record
entitled to vote in the election of directors generally may
nominate one or more persons for election as directors at a meeting
of stockholders and only if written notice of such stockholder's
intent to make such nomination or nominations has been given,
either by personal delivery or by United States mail, postage
prepaid, to the Secretary of the Corporation and has been received
by the Secretary not later than the following dates: (i) with
respect to an election to be held at an annual meeting of
stockholders, 60 days in advance of such meeting if such meeting is
to be held on a day which is within 30 days preceding the
anniversary of the previous year's annual meeting, or 90 days in
advance of such meeting if such meeting is to be held on or after
the anniversary of the previous year's annual meeting; and (ii)
with respect to an election to be held at a special meeting of
stockholders for the election of directors, the close of business
on the tenth day following the date on which notice of such meeting
is first given to stockholders. For purposes of this Section
Article II, Section 8, notice shall be deemed to first be given to
stockholders when disclosure of such date is first made in a press
release reported by the Dow Jones News Services, Associated Press
or comparable national news service or in a document publicly filed
by the Corporation with the Securities and Exchange Commission
pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act
of 1934, as amended.
Each such notice shall set forth:
(a) the name and address of the stockholder who intends to
make the nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nomi-
nate the person or persons specified in the notice;
(c) a description of all arrangements or understandings be-
tween the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; and
(d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and
Exchange Commission, had the nominee been nominated, or intended to
be nominated, by the Board of Directors.
To be effective, each notice of intent to make a nomination
given hereunder shall be accompanied by the written consent of each
nominee to serve as a director of the Corporation if elected.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not
properly brought before the meeting in accordance with the
provisions hereof and, if he should so determine, he shall declare
to the meeting that such nomination was not properly brought before
the meeting and shall not be considered.
ARTICLE III
OFFICERS
1. Executive Officers.
The executive officers of the Corporation shall be a Chairman
of the Board, a President, one or more Vice Presidents, a
Treasurer, and a Secretary, each of whom shall be elected by the
Board of Directors. The Board of Directors may elect or appoint
such other officers (including a Controller and one or more
Assistant Treasurers and Assistant Secretaries) as It may doom
necessary or desirable. Each officer shall hold office for such
term as may be prescribed by the Board of Directors from time to
time. Any person may hold at one time two or more offices.
2. Powers and Duties.
The Chairman of the Board, or, in his absence, the President,
shall preside at all meetings of the stockholders and of the Board
of Directors. The Chairman of the Board shall be the chief
executive officer of the Corporation. In the absence of the
Chairman of the Board, the President, a Vice President appointed by
the Chairman of the Board, or, if the Chairman of the Board falls
to make such appointment by the Board, shall perform all duties of
the chief executive officer. The Officers and agents of the
Corporation shall each have such powers and authority and shall
perform such duties in the management of the business, property,
and affairs of the Corporation as generally pertain to their
respective offices, as well as such powers and authorities and such
duties as from time to time may be prescribed by the Board of
Directors.
ARTICLE IV
RESIGNATIONS, REMOVALS, AND VACANCIES
1. Resignations.
Any director or officer of the Corporation, or any member of
any committee, may resign at any time by giving written notice to
the Board of Directors, the Chairman of the Board, the President,
or the Secretary of the Corporation. Any such resignation shall
take effect at the time specified therein or, if the time be not
specified therein, then upon receipt thereof. The acceptance of
such resignation shall not be necessary to make it affective.
2. Removals.
The Board of Directors, by a vote of not less than a majority
of the entire Board, at any meeting thereof, or by a unanimous
written consent, at any time, may, to the extent permitted by law,
remove with or without cause from office or terminate the
employment of any officer or the appointment of any member of any
committee and may, with or without cause, disband any committee.
Except as otherwise limited by the Delaware General
Corporation Law, any director or the entire Board of Directors may
be removed, with or without cause, by the holders of shares
entitled at the time to cast a majority of the votes entitled to be
cast at an election of directors.
3. Vacancies.
Any vacancy in the office of any director or officer through
death, resignation, removal, disqualification, or other cause, and
any additional directorship resulting from increase in the number
of directors, may be filled at any time by a majority of the
directors then in office (even though less then a quorum remains)
or, in the case of any vacancy in the office of any director, by
the stockholders, and, subject to the provisions of this Article
IV, the person so chosen shall hold office until his successor
shall have been elected and qualified; or, if the person so chosen
Is a director elected to fill a vacancy, he shall (subject to the
provisions of this Article IV) hold office for the unexpired term
of his predecessor.
ARTICLE V
CAPITAL STOCK
1. Stock Certificates.
The certificates for shares of the capital stock of the
Corporation shall be in such form as shall be prescribed by law and
approved, from time to time, by the Board of Directors.
2. Transfer of Shares.
Shares of the capital stock of the Corporation may be
transferred on the books of the Corporation only by the holder of
such shares or by his duly authorized attorney, upon the surrender
to the Corporation or its transfer agent of the certificate
representing such stock properly endorsed.
3. Fixing Record Date.
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders
or any adjournment thereof, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 60 nor less
than 10 days before the date of such meeting.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which
date shall not be. more then 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors.
In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise
any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date
Is adopted, and which record date shall be not more than 60 days
prior to such action.
4. Lost Certificates.
The Board of Directors or any transfer agent of the
Corporation may direct a new certificate or certificates
representing stock of the Corporation to be issued in place of any
certificate or certificates theretofore issued by the Corporation,
alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate to
be lost, stolen, or destroyed. When authorizing such issue of a
now certificate or certificates, the Board of Directors (or any
transfer agent of the Corporation authorized to do so by a
resolution of the Board of Directors) may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of
such lost, stolen, or destroyed certificate or certificates, or his
legal representative, to give the Corporation a bond in such-sum as
the Board of Directors (or any transfer agent so authorized) shall
direct to indemnity the Corporation against any claim that may, be
made against the Corporation with respect to the certificate
alleged to have been lost, stolen, or destroyed or the issuance of
such new certificates, and such requirement may be general or
confined to specific instances.
5. Regulations.
The Board of Directors shall have power and authority to make
all such rules and regulations as it may deem expedient concerning
the issue, transfer, registration, cancellation, and replacement of
certificates representing stock of the Corporation.
ARTICLE VI
MISCELLANEOUS
1. Corporate Seal.
The corporate seal shall have inscribed thereon the name of
the Corporation and shall be in such form as may be approved from
time to time by the Board of Directors.
2. Fiscal Year.
The fiscal year of the Corporation shall be determined by
resolution of the Board of Directors.
3. Notices and Waivers Thereof.
Whenever any notice whatever is required by law, the
Certificate of Incorporation, or these By-Laws to be given to any
stockholder, director, or officer, such notice, except as otherwise
provided by law, may be given personally, or by mail, or, in the
case of directors or officers by telegram, cable, facsimile, or
radiogram, addressed to such address as appears on the books of the
Corporation. Any notice given by telegram, cable, facsimile or
radiogram shall be deemed to have been given when it shall have
been delivered for transmission and any notice given by mail shall
be deemed to have been given when it shall have been deposited in
the United States mall with postage thereon prepaid.
Whenever any notice is required to be given by law, the
Certificate of Incorporation, or these By-Laws. a written waiver
thereof, signed by the person entitled to such notice, whether
before or after the meeting or the time stated therein, shall be
deemed equivalent in all respects to such notice to the full extent
permitted by law.
4. Stock of Other Corporations or Other Interests.
Unless otherwise ordered by the Board of Directors, the
Chairman of the Board, the Vice-Chairman, if any, the President,
the Secretary, and such attorneys or agents of the Corporation as
may be from time to time authorized by the Board of Directors, the
Chairman of the Board, the Vice-Chairman, if any, or the President,
shall have full Power and authority on behalf of this Corporation
to attend and to act and vote In person or by proxy at any meeting
of the holders of securities of any corporation or other entity in
which this Corporation may own or hold shares or other securities,
and at such meetings shall possess and may exercise all the rights
and powers Incident to the ownership of such shares or other
securities which this Corporation, as the owner or holder thereof,
might have possessed and exercised if present. The Chairman of the
Board, the Vice-Chairman, if any, the President, the Secretary, or
such attorneys or agents, may also execute and deliver on behalf of
this Corporation powers of attorney, proxies, consents, waivers,
and other instruments relating to the shares or securities owned or
held by this Corporation.
ARTICLE VII
AMENDMENTS
The holders of shares entitled at the time to vote for the
election of -directors shall have power to adopt, amend, or repeal
the By-Laws of the Corporation by vote of not less than a majority
of the votes entitled to be cost by the holders of such shares, and
except as otherwise provided by law, the Board of Directors shall
have power equal in all respects to that of the stockholders to
adopt, amend, or repeal the By-Laws by vote of not less than a
majority of the entire Board. However, any By-Law adopted by the
Board may be amended or repealed by vote of the holders of shares
entitled at the time to cast a majority of the votes entitled to be
cast for the election of directors.
ARTICLE VIII
INDEMNIFICATION
1. Indemnification Generally
The Corporation shall lndemnify each person who was or is made
a party or is threatened to be made a party to or is involved In
any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative
(hereinafter a "Proceeding"), by reason of the fact that he or she,
or a person of which he or she Is the legal representative, is or
was a director or officer, or had agreed to serve as a director or
officer, of the Corporation or is or was serving or has agreed to
serve at the request of the Corporation as a director, officer,
employee, or agent of another corporation or of a partnership,
joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, or by reason of any act alleged
to have been taken or omitted in such capacity, whether the basis
Of such proceeding is alleged action in an official capacity as a
director, officer, employee, or agent or alleged action in any
other capacity while serving as a director, officer, employee, or
agent, to the maximum extent authorized by the General Corporation
Law of the State of Delaware, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), against all cost,
expense, liability, and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties, and amounts paid or to be
paid in settlement) reasonably incurred by such person or on his or
her behalf in connection with such Proceeding and such
indemnification shall continue as to a person who has ceased to be
a director, officer, employee, or agent and shall inure to the
benefit of his or her heirs, executors, and administrators. The
right to Indemnification conferred In this Article VIII shall be a
contract right and shall include the right to be paid by the
Corporation the expenses Incurred In defending any such proceeding
in advance of Its final disposition provided that, if the General
Corporation Law of the State of Delaware so requires, the payment
of such expenses incurred by a director or officer in advance of
the final disposition of a Proceeding shall be made only upon
receipt by the Corporation of an undertaking by or on behalf of
such person to repay all amounts so advanced if it shall ultimately
be determined that such person is not entitled to be lndemnified by
the Corporation as authorized In this Article VIII or otherwise.
The termination any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of no contest or its
equivalent, shall not, of itself, create a presumption that the
person did not moot any standard of conduct for Indemnification
imposed by the General Corporation Law.
2. Indemnification for Costs and Expenses for Successful
Party.
Notwithstanding the other provisions of this Article VIII, to
the extent that a director or officer of the Corporation has been
successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in
defense of any action, suit, or proceeding referred to in Article
VIII, Section 1, or in the defense of any claim, Issue, or matter
therein, he shall be indemnified against all costs, charges, and
expenses (including attorneys' fees) actually and reasonably
Incurred by him or on his behalf in connection therewith.
3. Determination of Right to Indemnification.
Any indemnification under Article VIII, Section 1 (unless
ordered by a Court) shall be made by the Corporation only as
authorized in the specific case upon a determination that
Indemnification of the director, officer, employee or agent Is
proper in the circumstances because he has met the applicable
standards of conduct sat forth in the Delaware General Corporation
Law. Such determination shall be made (a) by a majority vote of
the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (b) if there are no
such directors, or if such directors so direct, by Independent
legal counsel in a written opinion, or (c) by the stockholders.
4. Advance of Costs, Charges and Expenses.
Costs, charges, and expenses (including attorneys' fees)
incurred by a person referred to in Article VIII, Section 1 of this
Article VIII in defending a civil or criminal action, suit, or
proceeding (including investigations by any government agency and
all costs, charges, and expenses incurred In preparing for any
threatened action, suit, or proceeding) shall be paid by the
Corporation in advance of the final disposition of such action,
suit or proceeding, provided, however, that the payment of such
costs, charges, and expenses incurred by a director or officer in
his capacity as a director or officer (and not in any other
capacity in which service was or Is rendered by such person while
a director or officer) in advance of the final disposition of such
action, suit, or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to repay all
amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be lndemnified by the
Corporation as authorized in this Article VIII. No security shall
be required for such undertaking and such undertaking shall be
accepted without reference to the recipient's financial ability to
make repayment. The Board of Directors may, in the manner set
forth above, and subject to the approval of such director or
officer, authorize the Corporation's counsel to represent such
person in any action, suit, or proceeding, whether or not that
Corporation is a party to such action, suit, or proceeding.
5. Procedure for Indemnification.
Any indemnification under Article VIII, Section 1 or advance
of costs, charges, and expenses under Article VIII, Section 4 shall
be made promptly, and in any event within 60 days, upon the written
request of the director or officer directed to the Secretary of the
Corporation. The right to Indemnification or advances as granted
by this Article VIII shall be enforceable by the director or
officer in any court of competent jurisdiction if the Corporation
denies such request, in whole or in part, or if no disposition
thereof is made within 60 days. Such person's costs and expenses
Incurred in connection with successfully establishing his right to
indemnification or advances, in whole or in part, in any such
action shall also be indemnified by the Corporation. It shall be
a defense to any such action (other than an action brought to
enforce a claim for the advance of costs, charges, and expenses
under Article VIII, Section 4 where the required undertaking, if
any, has not been received by the Corporation) that the claimant
has not met the standard of conduct, if any, sat forth in the
General Corporation Law, but, to the extent permitted by applicable
law, the burden of proving that such standard of conduct has not
been met shall be on the Corporation. To the extent permitted by
applicable law, neither the failure of the Corporation (including
its Board of Directors, Its independent legal counsel, and Its
stockholders) to have made a determination prior to the
commencement of such action that Indemnification of the claimant is
proper in the circumstances because he has met the applicable
standard of conduct, if any, set forth in the General Corporation
Low, nor the fact that there has been an actual determination by
the Corporation (including lt3 Board of Directors, its independent
legal counsel, and Its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the
applicable standard of conduct.
6. Other Rights; Continuation of Right of indemnification.
The indemnification provided by this Article VIII shall not be
deemed exclusive of any other rights to which a person seeking
Indemnification may be entitled under any law (common or
statutory), agreement, vote of stockholders or disinterested
directors, or otherwise, both as to action in his official capacity
and as to action in another capacity while holding office, and
shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of the estate heirs,
executors and administrators of such person. All rights to
indemnification under this Article VIII shall be deemed to be a
contract between the Corporation and each director and officer of
the Corporation who serves or served in such capacity at any time
while this Article VIII Is In effect. No amendment or repeal of
this Article VIII or of any relevant provisions of the Delaware
General Corporation Law or any other applicable laws shall
adversely affect or deny to any director or officer any rights to
Indemnification which such person may have, or change or release
any obligations of the Corporation, under this Article VIII with
respect to any costs, charges, expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement which arise
out of an action, suit, or proceeding based in whole or substantial
part on any act, actual or alleged, which takes place before or
while this Article VIII is in effect. The provisions of this
Article VIII, Section 6 shall apply to any such action,, suit, or
proceeding whenever commenced, Including any such action, suit, or
proceeding commenced after any amendment or repeal of this Article
VIII. The right to Indemnification and advancement of expenses
conferred on any person by this Article VIII shall not limit the
Corporation from providing any other indemnification permitted by
law.
7. Definitions.
For purposes of this Article VIII:
(a) "the Corporation" includes any constituent
corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence
continued, would have had power and authority to lndemnify its
directors or officers, so that any person who is or was a director
or officer of such constituent corporation, or is or was serving at
the request of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust, or other enterprise, shall stand in the some
position under the provisions of this Article VIII with respect to
the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence
had continued;
(b) "other enterprises" includes employee benefit
plans, including but not limited to any employee benefit plans of
the Corporation;
(c) "serving at the request of the Corporation"
includes, but is not limited to, any service which imposes duties
on, or involves services by, a director or officer of the
Corporation with respect to an employee benefit plan, its
participants, or beneficiaries, including acting as a fiduciary
thereof;
(d) "fines" shall Include any penalties and any
excise or similar taxes assessed on a person with respect to an
employee benefit plan;
(e) service as a partner, trustee, or member of
management or similar committee of a partnership or joint venture
or as a director, officer, employee or agent of a corporation which
is a Partner, trustee, or joint venturer, shall be considered
service as a director, officer, employee, or agent of the
partnership, joint venture, trust, or other enterprise.
8. Saving Clause.
If this Article VIII or any portion hereof shall be
invalidated on any ground by a court of competent jurisdiction,
then the Corporation shall nevertheless lndemnify each director and
officer of the Corporation as to costs, charges, expenses
(including attorneys' fees), judgments, fines, and amounts paid in
settlement with respect to any action suit, or proceeding, whether
civil, criminal, administrative, or investigative, including an
action by or In the right of the Corporation, to the full extent
permitted by any applicable portion of this Article VIII that shall
not have been invalidated and to the full extent permitted by
applicable law.
9. Indemnification of Other Persons.
If authorized by the Board of Directors, the Corporation may
indemnify and advance expenses to any other person whom it has the
power to indemnify under the General Corporation Law to the fullest
extent permitted by such statute.
10. Insurance.
The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any director, officer. employee or
agent of the Corporation or another corporation, partnership, joint
venture, trust, or other enterprises against any expense, liability
or loss. whether or not the Corporation would have the power to
indemnify such person under the General Corporation Law of the
State of Delaware.
FOR IMMEDIATE RELEASE
Release Date: January 29, 1997
For Further Information Contact: Steven Rothenberg
VideoLan Technologies
502-895-4858
VIDEOLAN TECHNOLOGIES, INC. ADOPTS RIGHTS PLAN
LOUISVILLE, KY -- The Board of Directors of VideoLan
Technologies, Inc. (NASDAQ: VLNT) today adopted a shareholder
rights plan and declared a dividend of one right on each
outstanding share of VideoLan common stock.
The shareholder rights plan is similar to shareholder
protection plans that have been adopted by more than 1,700
corporations.
The rights dividend is payable on February 8, 1997, to
shareholders of record on that date. In addition to the rights
dividend on currently outstanding shares, the plan provides for the
automatic issuance of one right with respect to each share of
common stock issued after February 8, 1997.
"The rights plan was adopted to protect the interests of
VideoLan shareholders and to help ensure that they receive fair
treatment in the event of a takeover attempt," said Jack Shirman,
Chief Executive Officer of VideoLan. "The rights plan is not
intended to prevent an acquisition of the Company for a full and
fair price in a transaction that is in the best interest of the
Company. The rights are not being distributed in response to any
effort to purchase control of the Company and the Board is not
aware of any such effort."
Under the plan, the rights would be distributed:
* Ten days after a public announcement that a person or
group had acquired 15% or more (defined in the plan to be
an "Acquiring Person") of VideoLan's outstanding common
shares, or
* Ten business days after the beginning of a tender offer
or exchange offer that would result in a person or group
owning 15% or more of the outstanding common shares.
Until separate rights certificates are issued following one of
these triggering events, the rights will be evidenced by VideoLan
common stock certificates, will automatically trade with the common
stock, and will not be exercisable.
When distributed following the announcement of a tender offer,
each right would entitle the holder to purchase 1/100th of a share
of newly issued Junior Participating Preferred Stock of VideoLan
for a purchase price of $19.00.
If a person actually acquires 15% or more of VideoLan common
stock, each right (other than rights held by an Acquiring Person)
will entitle its holder to purchase, for the $19.00 exercise
price, a number of shares VideoLan common stock having a market
value of twice the exercise price. At the same time, the rights
held by such an Acquiring Person would become null and void. At
any time after the rights become exercisable for VideoLan common
stock, the Board of Directors may exchange the rights (other than
rights owned by an Acquiring Person), in whole or in part, at an
exchange ratio of one common share per right.
In addition, if, when or after a person becomes an Acquiring
Person: (1) VideoLan Technologies is acquired in a merger or other
transaction in which VideoLan is not the surviving corporation --
other than a merger that the independent directors determine to be
in the best interests of VideoLan and its shareholders -- or (2) if
50% or more of VideoLan's assets or earning power is sold or
transferred, each rights holder will be entitled to receive common
stock of the acquiring company worth two times the exercise price
of the right.
VideoLan may redeem rights for $0.01 per right at any time.
After a person acquires 15% of VideoLan common stock, redemption
would require approval of a majority of the directors in office
before the person acquired 15% of the common stock and who are not
affiliated or associated with the Acquiring Person.
"The plan provides our Board of Directors flexibility in
dealing with any takeover action that might occur," said Shirman.
"It would not impede any transaction that the Board feels is in the
best interests of VideoLan and its shareholders. On the other
hand, the dilutive consequences of triggering the rights should be
a deterrent to actions that are not in the best interests of
VideoLan and its shareholders."
The issuance of rights has no financial effect on VideoLan, is
not dilutive to shareholders, is not taxable to the Company or its
shareholders, and will not change the way in which VideoLan common
shares are traded. Rights are not exercisable until the
distribution date and will expire at the close of business on
February 8, 2007, unless earlier redeemed by the Company.
In addition to the Stockholder Rights Plan, the Board of
Directors also adopted amendments to the Company's bylaws
establishing procedures for the conduct of consent solicitations,
for stockholder nomination of candidates for election to the Board
of Directors, and for including stockholder proposals on the agenda
for stockholders meetings. The bylaws, as amended, require
stockholders to provide written notice to the Company prior to a
consent solicitation, and authorize the Board of Directors to set
the record date in accordance with Delaware law. In addition, the
amended bylaws require written notice to the Company of stockholder
proposals and director nominations be given 90 days before the
annual meetings of stockholders and specified periods before
special meetings.
VideoLan Technologies, Inc. is a premier developer of video
conferencing and video broadcast solutions based upon its Metallic
Fiber transmission and broadband switching technology. VideoLan's
technology enables broadcast-quality transport of high speed, bi-directional,
real-time voice, data, and video over existing twisted pair copper wire
infrastructures. VideoLan's products are marketed in both the desktop
video market and the emerging and rapidly developing video distribution
market. VideoLan is based in Louisville, KY and can be reached at
(502)895-4858 or by fax at
(502)895-1680.
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