UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 14C
Information Statement Pursuant to Section 14(c)
of the Securities
Exchange Act of 1934
(Amendment No. ___)
Check the appropriate box:
þ
|
|
Preliminary Information Statement
|
o
|
|
Confidential, for Use of the Commission Only (as permitted by Rule 14c-5(d)(2))
|
o
|
|
Definitive Information Statement
|
ViewCast.com, Inc.
(Name of Registrant as Specified in Its Charter)
Payment of Filing Fee (Check the appropriate box):
þ
|
|
No fee required.
|
o
|
|
Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
|
|
(1)
|
|
Title of each class of securities to which transaction applies:
|
|
|
|
|
|
|
|
|
|
|
|
(2)
|
|
Aggregate number of securities to which transaction applies:
|
|
|
|
|
|
|
|
|
|
|
|
(3)
|
|
Per unit price or other underlying value of transaction computed pursuant to Exchange Act
Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was
determined):
|
|
|
|
|
|
|
|
|
|
|
|
(4)
|
|
Proposed maximum aggregate value of transaction:
|
|
|
|
|
|
|
|
|
|
|
|
(5)
|
|
Total fee paid:
|
|
|
|
|
|
|
|
|
|
o
|
|
Fee paid previously with preliminary materials.
|
|
o
|
|
Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the form or schedule and the date of its
filing.
|
|
(1)
|
|
Amount Previously Paid:
|
|
|
|
|
|
|
|
|
|
|
|
(2)
|
|
Form, Schedule or Registration Statement No.:
|
|
|
|
|
|
|
|
|
|
|
|
(3)
|
|
Filing Party:
|
|
|
|
|
|
|
|
|
|
|
|
(4)
|
|
Date Filed:
|
|
|
|
|
|
|
|
|
|
ViewCast Corporation
3701 W. Plano Parkway, Suite 300
Plano, Texas 75075
Notice of Stockholder Action by Written Consent
To our Stockholders:
The purpose of this letter is to inform you of actions that have been taken by certain
stockholders of ViewCast.com, Inc., doing business as ViewCast Corporation, a Delaware corporation
(the
Company
,
we
or
us
). On or before May 31, 2011, four of our stockholders, holding voting
rights representing a majority of the voting power of all of our capital stock executed a written
consent in lieu of a special meeting taking action as follows:
|
1)
|
|
authorizing a Certificate of Amendment to our Certificate of Incorporation (as
previously amended, our
Certificate of Incorporation
) to increase the number of
authorized shares of common stock, par value $0.0001 per share (
Common Stock
) from
One Hundred Million (100,000,000) shares to Two Hundred Million shares (200,000,000);
and
|
|
2)
|
|
authorizing the board of directors of the Company (the
Board
) to effect a
future amendment to our Certificate of Incorporation which would effect a reverse stock
split of our common stock with a ratio within a range of 1-for-5 to 1-for-50, with the
exact ratio within such range to be determined by the Board in its discretion to, among
other things, meet the listing requirements of a large national exchange, such as The
NASDAQ Stock Market, as a result of which every five to fifty shares of Common Stock
outstanding before the reverse stock split shall represent one share of Common Stock.
If the reverse stock split is effected by the Board, the final reverse stock split
ratio within the range will be determined solely by our Board at any future date prior
to July 5, 2013, without further action or approval of the stockholders.
|
Under the Delaware General Corporation Law (
DGCL
) and our Certificate of Incorporation and
Bylaws, these changes to our Certificate of Incorporation may be effected, without a meeting of
stockholders, by a resolution of our Board followed by written consent of stockholders holding
voting rights representing a majority of the voting power of all of our capital stock. The
described changes to our Certificate of Incorporation have already been approved by our Board and
by the required written consent of stockholders. This letter is the notice required by Section
228(e) of the DGCL. We expect to begin mailing this Information Statement to stockholders on
_____, 2011.
This letter and the accompanying Information Statement, which describes in more detail the
changes and potential changes to our Certificate of Incorporation, are being furnished to our
stockholders for informational purposes only.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
By Order of the Board
David T. Stoner
Chief Executive Officer
, 2011
Important Notice Regarding the Internet Availability of this Information Statement
A copy of this Information Statement is available to you free of charge at
http://viewcast.com/company/investor-relations. We are not soliciting your proxy or consent, but
are furnishing an information statement to you pursuant to Rule 14c-2 promulgated under the
Securities Exchange Act of 1934, as amended.
ViewCast Corporation
3701 W. Plano Parkway, Suite 300
Plano, Texas 75075
INFORMATION STATEMENT
PURSUANT TO SECTION 14(c)
OF THE SECURITIES EXCHANGE ACT OF 1934
NO VOTE OR OTHER ACTION OF THE COMPANYS STOCKHOLDERS IS REQUIRED IN
CONNECTION WITH THIS INFORMATION STATEMENT.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
ViewCast.com, Inc., doing business as ViewCast Corporation, a Delaware corporation (the
Company
,
we
or
us
), is sending you this Information Statement solely for purposes of
informing our stockholders of record as of June 3, 2011 (the
Record Date
), in the manner required
by Regulation 14C of the Securities Exchange Act of 1934, as amended (the
Exchange Act
), and the
Delaware General Corporation Law (the
DGCL
), of the actions taken by our Board (the
Board
) and
stockholders by written consents in lieu of special meetings. No action is requested or required
on your part.
NOTICE TO STOCKHOLDERS OF ACTIONS APPROVED BY WRITTEN CONSENT
As of the Record Date, our Board adopted, and stockholders holding voting rights representing
a majority of the voting power of all of our capital stock, approved, by written consent,
resolutions: (i) authorizing a Certificate of Amendment to our Certificate of Incorporation (as
previously amended, our
Certificate of Incorporation
) to increase the number of authorized shares
of common stock, par value $0.0001 per share (
Common Stock
) from One Hundred Million
(100,000,000) shares to Two Hundred Million shares (200,000,000); and (ii) authorizing the Board,
at its discretion, to effect a future amendment to our Certificate of Incorporation which would
effect a reverse stock split of our common stock with a ratio within a range of 1-for-5 to
1-for-50, with the exact ratio within such range to be determined by the Board in its discretion,
as a result of which every five to fifty shares of Common Stock outstanding before the reverse
stock split shall represent one share of Common Stock. If the reverse stock split is effected by
the Board, the final reverse stock split ratio within the range will be determined solely by our
Board at any future date prior to July 5, 2013, without further action or approval of the
stockholders. This Information Statement describes in more detail the changes to our Certificate
of Incorporation.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING INFORMATION
This Information Statement may contain forward-looking statements made under the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995. The statements
include, but are not limited to, statements concerning the effects of the Reverse Stock Split (as
hereafter defined), the potential application for listing or actual listing of our Common Stock on
The NASDAQ Stock Market (
NASDAQ
), or another national securities exchange, and statements using
terminology such as expects, should, would, could, intends, plans, anticipates,
believes, projects and potential. Such statements reflect the current view of the Company
with respect to future events and are subject to certain risks, uncertainties and assumptions.
Known and unknown risks, uncertainties and other factors could cause actual results to differ
materially from those contemplated by the statements.
In evaluating these statements, you should specifically consider various factors that may
cause our actual results to differ materially from any forward-looking statements. You should
carefully review the risks listed, as well as any cautionary language, in this Information
Statement and the risk factors detailed under Risk Factors in the documents incorporated by
reference in this Information Statement, which provide examples of risks, uncertainties and events
that may cause our actual results to differ materially from any expectations we describe in our
forward-looking statements. There may be other risks that we have not described that may adversely
affect our business and financial condition. We disclaim any obligation to update or revise any of
the forward-looking statements contained in this Information Statement. We caution you not to rely
upon any forward-looking statement as representing our views as of any date after the date of this
Information Statement. You should carefully review the information and risk factors set forth in
other reports and documents that we file from time to time with the Securities and Exchange
Commission (the
SEC
).
1
Delivery of Information Statement
We are required under the Exchange Act and the DGCL to deliver a notice and Information
Statement to our stockholders to inform them that certain stockholders and our Board have taken
these actions that will affect the Company.
Action By Written Consent
Effective as of the Record Date, our Board and four stockholders, collectively representing
approximately 55.9% of the voting power of our Common Stock, have approved: (i) an amendment to our
Certificate of Incorporation, in the form attached as
Appendix A
to this Information
Statement, increasing the number of authorized shares of our Common Stock from 100,000,000 to
200,000,000 (the
Share Increase Amendment
); and (ii) authorized a possible future amendment to
our Certificate of Incorporation, to be adopted at the Boards discretion at any time prior to July
5, 2013, to effect a reverse stock split of our Common Stock (the
Reverse Stock Split
), at a
reverse split ratio of 1-for-5 to 1-for-50 (the
Reverse Stock Split Range
), with the exact ratio
within the Reverse Stock Split Range to be determined by the Board in its discretion, to the extent
necessary, among other things, to meet the applicable listing requirements of NASDAQ, or another
national securities exchange, as a result of which every five to fifty outstanding shares of Common
Stock before the Reverse Stock Split shall represent one share of Common Stock after the Reverse
Stock Split (the
Reverse Split Amendment
, and together with the Share Increase Amendment, the
Amendments
).
Voting Securities and Principal Holders Thereof
The approval of the Amendments required only the written consent of stockholders representing
a majority of the voting power of our capital stock. A majority means one vote more than 50% of
the total number of shares that would have been eligible to vote at a meeting of stockholders.
Each holder of record of our Common Stock and our Series E Convertible Redeemable Preferred Stock,
par value $0.0001 per share, on an as-converted basis (
Series E Preferred Stock
,
and together
with our Common Stock, the
Capital Stock
), at the close of business on the Record Date, would
have been eligible to vote at a meeting of our stockholders concerning the matters discussed in
this information statement, if such meeting had been required.
As of the Record Date, 55,699,005 shares of our Common Stock and 80,000 shares of our Series E
Preferred Stock were issued and outstanding. Each holder of a share of our Common Stock was
entitled to one vote for every share of Common Stock held by such stockholder. In addition, each
holder of our Series E Preferred Stock was entitled to one vote for every share of Common Stock
such shares of Series E Preferred Stock were convertible into on the Record Date. Based upon the
conversion rate as of the Record Date, as established in the Exchange Agreement (as defined in the
section Reasons for the Amendments below), each holder of Series E Preferred Stock was entitled
to 200 votes for every share of Series E Preferred Stock held, concerning the approval of the
Amendments.
Four of our stockholders, H.T. Ardinger, Jr., Ardinger Family Partnership, Ltd., a Texas
limited partnership of which Mr. Ardinger is the sole general partner (
Ardinger LP
), David W.
Brandenburg, a director of our Company, and his wife, Diana L. Brandenburg (together, the
Stockholders
), collectively representing approximately 55.9% of the voting power of our Capital
Stock, executed the written consent of stockholders approving the Amendments (the
Written
Consent
). Upon the execution of the Written Consent, the Amendments were validly authorized and
approved.
No Special Meeting
Under the DGCL and our Certificate of Incorporation and Restated Bylaws (our
Bylaws
), the
changes to our Certificate of Incorporation may be effected, without a meeting of stockholders, by
a resolution of our Board followed by written consent of stockholders holding voting rights
equivalent to a majority of Capital Stock. The described changes to our Certificate of
Incorporation were approved by our Board and our stockholders, by virtue of the execution of the
Written Consent by the Stockholders. Therefore, no stockholders meeting was required for approval
of the Amendments.
2
Reasons for the Amendments
As previously disclosed, on May 4, 2011, we entered into that certain Preferred Stock Exchange
Agreement, dated as of May 4, 2011, with H.T. Ardinger Jr., Ardinger LP, Adkins Family Partnership,
Ltd. and RDB Limited, p/k/a Baker Family Partnership, Ltd. (the
Exchange Agreement
). In
accordance with the Exchange Agreement, on May 4, 2011, all 800,000 outstanding shares of our
Series B Convertible Preferred Stock, par value $0.0001 per share, and 200,000 outstanding shares
of our Series C Convertible Preferred Stock, par value $0.0001 per share, were converted into an
aggregate of 16,666,666 shares of our Common Stock (the
Series B/C Conversion
).
In addition to the Series B/C Conversion, pursuant to the Exchange Agreement, among other
things: (i) prior to May 4, 2012, the holders of our Series E Preferred Stock may convert each
share of Series E Preferred Stock held by such holder into 200 shares of our Common Stock; (ii)
upon the consummation of a Securities Placement (as defined in the section Description of Capital
Stock below) all 80,000 outstanding shares of the Companys Series E Preferred Stock shall
mandatorily convert into 16,000,000 shares of our Common Stock and (iii) we agreed to use
commercially reasonable efforts to meet the applicable listing requirements of NASDAQ, and upon
meeting such requirements, apply for listing on a NASDAQ market.
As a result of the Exchange Agreement described above and the related desire of the Company to
potentially consummate a Securities Placement and to potentially increase its share price of its
Common Stock in order to meet the NASDAQ listing requirements, Mr. Ardinger, Ardinger LP, Mr.
Brandenburg, our director with the largest ownership position in the Company, and his wife, Ms.
Brandenburg, voluntarily delivered to the Company written consents approving: (i) an increase the
amount of authorized shares of Common Stock to provide the Company with flexibility regarding the
consummation of any Securities Placement and (ii) authorize the filing of a potential future
amendment, at the Boards discretion, to effect a reverse stock split of our Common Stock.
Authorization of Additional Shares of Common Stock
As of the Record Date, 55,699,005 shares of our Common Stock were issued in outstanding. In
addition, we have reserved: (i) 6,284,085 shares of our Common Stock to be issued in connection
with any exercise of outstanding stock options and (ii) 16,000,000 shares of our Common Stock for
issuance in connection with any optional or mandatory conversion of the Series E Preferred Stock as
contemplated by the Exchange Agreement. Based upon the share price of our Common Stock, $0.35 per
share as of the Record Date, the Board believed that an insufficient number of authorized but
unissued or unreserved shares of Common Stock would be available for issuance in the event that the
we determined to consummate a Securities Placement. As a result, the Board believed it was in the
best interest of the Company and our stockholders to increase the number of shares of Common Stock
authorized from 100,000,000 to 200,000,000.
Accordingly, in order to ensure that we will have enough authorized but unissued shares of our
Common Stock for issuance as indicated above and to thereafter permit us to meet our business needs
as they arise, our Board believed it to be in our best interest and the interests of our
stockholders to increase the number of authorized shares of our Common stock. The availability of
these additional authorized shares of Common Stock will provide us with flexibility to issue Common
Stock for a variety of corporate purposes, without the delay and expense associated with convening
a special stockholders meeting. These purposes may include, among other things, raising equity
capital through public and private offerings, including but not limited to, a Securities Placement,
funding potential acquisitions, adopting additional stock plans or reserving additional shares for
issuance under existing plans. The Share Increase Amendment will make available the additional
authorized shares of Common Stock for issuance from time to time at the discretion of our Board
without further action by our stockholders.
3
Reverse Stock Split
Our Common Stock is currently traded on the OTC Bulletin Board under the ticker symbol
VCST.OB. The OTC Bulletin Board is an inter-dealer, over-the-counter market that provides
significantly less liquidity than national securities exchanges, such as NASDAQ. As discussed
above, pursuant to the Exchange Agreement, we have agreed to use commercially reasonable efforts to
meet NASDAQs listing requirements and, upon meeting such requirements, we have agreed to apply for
registration on a NASDAQ market. Generally, to list our Common
Stock on a NASDAQ market, we will be required to have a minimum bid price of $4.00 per share.
As of the Record Date, the closing price of our Common Stock, as quoted on the OTC Bulletin Board,
was $0.35 per share. Therefore, we do not currently meet NASDAQs minimum bid price listing
requirements. There is no guarantee that we will meet the minimum bid price or other requirements
for out Common Stock to be traded on NASDAQ. Additionally, the Board believes that the current
market value per share of our Common Stock has reduced the effective marketability of the shares of
our Common Stock because institutional investors and investment funds are generally reluctant to
invest in lower priced stocks and many brokerage firms are generally reluctant to recommend lower
priced stocks to their clients.
The purpose of authorizing the Reverse Stock Split Range from 1-for-5 to 1-for-50 (rather than
a fixed reverse split ratio) is to provide the Company with flexibility to determine an appropriate
reverse split ratio and bring it into effect on short notice. We anticipate that we may need to
utilize a Reverse Stock Split to, among other things, attempt to meet the applicable NASDAQ listing
requirements in connection with the potential listing of our Common Stock on a NASDAQ market,
including but not limited to, the $4.00 minimum share price requirement. The Board will effect the
Reverse Stock Split only upon the determination that a Reverse Stock Split will be in the best
interests of the Company at that time. If the Board decides to effect a Reverse Stock Split, the
Board will set the timing for such a split and select the specific ratio within the permitted
Reverse Stock Split Range that , in its discretion, would be in the best interests of the Company
and our stockholders at that time. Such determination may take into consideration, among other
things, the impact of any Reverse Stock Split on our ability to meet the applicable NASDAQ listing
requirements, or the requirements of another national securities exchange, as applicable. No
further action on the part of stockholders will be required to either implement or abandon the
Reverse Stock Split. The Board reserves its right to elect not to proceed with the Reverse Stock
Split if it determines, in its sole discretion, that such action is not in the best interest of the
Company or our stockholders.
Process for Effecting the Reverse Stock Split
Should the Board determine that it is in the best interests of the Company and our
stockholders to effect the Reverse Stock Split, including, but not limited to, meeting the
applicable NASDAQ listing requirement that our Common Stock trade at a minimum value of $4.00 per
share, we may, at any time commencing 20 days after this Information Statement has first been sent
or given to stockholders, amend our Certificate of Incorporation to effect the reverse stock split
in the ratio determined by the Board in its sole discretion, within the Reverse Stock Split Range.
Our Board may suspend or withdraw the Reverse Stock Split at any time before the Reverse Stock
Split is effective if the Board deems it in the best interests of the Company and our stockholders
to do so.
The actual timing of the filing of the Reverse Split Amendment with the Secretary of State of
the State of Delaware to effect the Reverse Stock Split will be determined by the Board. The
Reverse Stock Split will be effective as of the effective date of, or the effective date otherwise
stated in, an amendment to our Certificate of Incorporation (the
Effective Date
).
Upon the filing of the Reverse Split Amendment to effect the Reverse Stock Split, the
outstanding shares of Common Stock held by stockholders of record as of the Effective Date will be
converted into a lesser number of shares of Common Stock calculated based on the ratio within the
Reverse Stock Split Range chosen by our Board. For example, if a stockholder presently holds 100
shares of Common Stock and the Board chooses a reverse stock split ratio of 1-for-5, he, she or it
would hold 20 shares of Common Stock following the Reverse Stock Split. In addition to filing an
amendment to our Certificate of Incorporation with the Secretary of State of the State of Delaware,
the Company will also obtain a new CUSIP number for our Common Stock at the time of the Reverse
Stock Split. Further, the Company must provide notice to the Financial Industry Regulatory
Authority (
FINRA
) at least 10 calendar days advance notice of the Effective Date in compliance
with Rule 10b-17 promulgated pursuant to the Exchange Act and related SEC and FINRA rules.
The Reverse Stock Split will reduce the number of shares of Common Stock issuable upon
exercise or conversion of our outstanding stock options and Series E Preferred Stock in proportion
to the exchange ratio of the Reverse Stock Split and will effect a proportionate increase in the
exercise price of such outstanding stock options and the conversion price of the Series E Preferred
Stock. In connection with the Reverse Stock Split, the number of shares of Common Stock issuable
upon exercise or conversion of outstanding stock options or Series E Preferred Stock will be
rounded to the nearest whole share and no cash payment will be made in respect of such rounding.
4
The Reverse Stock Split would not affect any common stockholders percentage ownership
interest in us, except to the extent that the Reverse Stock Split results in any of our common
stockholders owning a fractional share as described below. The voting rights and other rights and
preferences of the holders of our Common Stock will not be affected by the Reverse Stock Split
(other than as a result of the payment of cash in lieu of fractional shares). The number of
stockholders of record will not be affected by the Reverse Stock Split (except to the extent that
any stockholder holds only a fractional share interest and receives cash for such interest after
the Reverse Stock Split).
Fractional Shares Resulting from Reverse Stock Split
We will not issue any fractional shares in connection with the Reverse Stock Split. Instead,
stockholders who would be otherwise entitled to receive fractional shares because they hold a
number of shares not evenly divisible by the exchange ratio would instead receive cash. The cash
amount to be paid to each stockholder will be equal to the resulting fractional interest in one
share of our Common Stock to which the stockholder will be otherwise entitled, multiplied by the
closing trading price of our Common Stock on the trading day immediately before the Effective Date.
Risks Relating to Effecting the Reverse Stock Split
The market value per share of our Common Stock after the Reverse Stock Split may not increase
and/or remain higher than the current market value per share of our Common Stock at any time or for
any period of time after the Reverse Stock Split, and the total market capitalization of the
Company after the Reverse Stock Split may not equal or exceed the total market capitalization
before the Reverse Stock Split.
The fair market value per share of our Common Stock after the Reverse Stock Split may not be
proportionately higher than the market value per share of our Common Stock immediately prior to the
Reverse Stock Split, increase at all, or remain constant in proportion to the reduction in the
number of outstanding shares of our Common Stock immediately prior to the Reverse Stock Split.
Accordingly, the total market capitalization of the Company after the Reverse Stock Split could be
lower than the total market capitalization of the Company before the Reverse Stock Split and, in
the future, the market value per share of our Common Stock after the Reverse Stock Split may not
exceed and/or remain higher than the current market value per share of our Common Stock immediately
prior to the Reverse Stock Split. In many cases, the total market capitalization of a company
immediately after a reverse stock split is lower than the total market capitalization immediately
prior to the reverse stock split.
The Reverse Stock Split may not result in a fair market value per share of Common Stock that
will attract institutional investors, investment funds, or brokers or remain sufficient to maintain
any future securities exchange listing.
Although the Board believes that a higher stock price may help generate investor interest, the
Reverse Stock Split may not result in a market value per share of our Common Stock that will
attract institutional investors, investment funds, or brokers. Furthermore, the market value per
share of our Common Stock may fall below the price necessary to maintain a national securities
exchange listing.
The Reverse Stock Split may result in certain stockholders owning odd-lots.
Although we believe that a Reverse Stock Split may be in the best interests of the Company and
our stockholders, once implemented, the Reverse Stock Split may result in certain stockholders
owning odd-lots of less than 100 shares. Brokerage commissions and other costs of transactions in
odd-lots may be higher, particularly on a per-share basis, than the cost of transactions in even
multiples of 100 shares.
5
Exchange of Stock Certificates Representing Pre-Reverse Stock Split Shares for Certificates
Representing Post-Reverse Stock Split Shares
Should the Board determine to effect the Reverse Stock Split, the conversion of the shares of
our Common Stock under the Reverse Stock Split will occur automatically on the Effective Date at a
rate within the Reverse Stock Split Range determined by the Board. This will occur regardless of
when stockholders physically surrender their stock certificates for new stock certificates.
The Company expects its transfer agent, Continental Stock Transfer and Trust Company, to act
as exchange agent (
Exchange Agent
) to implement the exchange of stock certificates and the
distribution of any cash in lieu of fractional shares. As soon as practicable after the Effective
Date, the Company or the Exchange Agent would send a letter to each stockholder of record at the
Effective Date for use in transmitting certificates representing shares of our Common Stock (
Old
Certificates
) to the Exchange Agent. The letter of transmittal would contain instructions for the
surrender of Old Certificates to the Exchange Agent in exchange for certificates representing the
appropriate number of whole shares of Common Stock to be issued following the Reverse Stock Split
(the
New Common Stock
) and any cash to be distributed in lieu of fractional shares.
No new stock certificates would be issued to a stockholder until such stockholder has
surrendered all Old Certificates, together with a properly completed and executed letter of
transmittal, to the Exchange Agent. Consequently, you will need to surrender your Old Certificates
before you would be able to sell or transfer your stock. Upon each stockholders surrender of all
of their Old Certificates and delivery of a properly completed and executed letter of transmittal
to the Exchange Agent, each stockholder would then receive a new certificate or certificates
representing the number of whole shares of New Common Stock into which their shares of Common Stock
have been converted as a result of the Reverse Stock Split. Until surrendered, we will deem
outstanding Old Certificates held by stockholders to be canceled and only to represent the right to
receive the number of whole shares of New Common Stock, and cash in lieu of fractional shares, to
which such stockholders are entitled.
YOU SHOULD NOT SEND YOUR OLD CERTIFICATES TO THE EXCHANGE AGENT UNTIL YOU HAVE RECEIVED THE LETTER
OF TRANSMITTAL.
No Further Action Required
As discussed above, no further stockholder action or other votes are required. The Share
Increase Amendment will become effective when it is filed with the Secretary of State of the State
of Delaware, which will occur no earlier than 20 calendar days after the mailing of this
Information Statement.
If the Board determines to effect the Reverse Stock Split, the final reverse stock split ratio
within the Reverse Stock Split Range would be determined solely by our Board at any future date
prior to July 5, 2013, without further action or approval of the stockholders. At such time, if
any, the Company would file with the Secretary of State of the State of Delaware the Reverse Split
Amendment to effect the Reverse Stock Split. The Company would then send you a letter of
transmittal instructing you how you may surrender your Old Certificates for certificates
representing shares of New Common Stock.
Impact of Amendments on Ownership Interests
Neither the Share Increase Amendment nor the Reverse Split Amendment would, by themselves,
affect your ownership interests in the Company (excluding the payments in lieu of fractional shares
resulting from the Reverse Stock Split).
Following the effectiveness of the Reverse Stock Split, however, that number of shares of
Common Stock extinguished pursuant to the Reverse Stock Split, respectively, will again be
available for issuance by the Company. Our issuance of additional shares of Common Stock would
reduce your ownership interest in proportion to the number of shares issued. Our future issuances
of additional shares may have the effect of diluting earnings per share and book value per share of
the outstanding shares at that time.
6
Impact of Amendments on Voting Interests
The Share Increase Amendment and the Reverse Split Amendment do not, by themselves, affect
your voting interests in the Company (excluding any decrease in voting interests resulting from the
payment of cash in lieu of fractional shares upon the consummation of the Reverse Stock Split).
However, in the future, our issuance of additional shares of Common Stock will reduce your voting
interest.
Other Impacts of Reverse Stock Split.
The Reverse Stock Split could be construed to have an anti-takeover effect because of the
effective increase in the number of authorized but unissued shares of Common Stock that could be
issued (within the limits imposed by applicable law) in one or more transactions that could make
more difficult a change in control or takeover of the Company. Our Board is not aware of any
attempt, or contemplated attempt, to acquire control of the Company, and this action to amend our
Certificate of Incorporation was not taken with the intent that it be utilized as a type of
anti-takeover device.
Federal Income Tax Consequences.
The following is a summary of certain U.S. federal income tax considerations of the Reverse
Stock Split. It addresses only U.S. Stockholders (as defined herein) who hold the pre-Reverse Stock
Split shares and post-Reverse Stock Split shares as capital assets. This summary is based upon the
Internal Revenue Code of 1986, as amended (the
Code
), Treasury Regulations, judicial authorities,
published positions of the Internal Revenue Service (the
IRS
) and other applicable authorities,
all as in effect on the date hereof and all of which are subject to change or differing
interpretations (possibly with retroactive effect). It does not address tax considerations under
state, local, foreign and other laws.
As used herein, the term
U.S. Stockholder
means: (i) an individual who is a citizen or
resident of the United States, (ii) a corporation or other entity treated as a corporation created
or organized in or under (or treated for U.S. federal income tax purposes as created or organized
in or under) the laws of the United States or any state thereof or the District of Columbia, (iii)
an estate subject to U.S. federal income taxation without regard to the source of its income, and
(iv) a trust if (a) a U.S. court is able to exercise primary supervision over the trusts
administration and one or more U.S. fiduciaries have the authority to control all of the trusts
substantial decisions, or (b) the trust has in effect a valid election to be treated as a United
States person within the meaning of the U.S. Treasury Regulations.
The discussion does not address the U.S. federal income tax considerations that affect the
treatment of an entity that is a partnership for U.S. federal income tax purposes and that holds
the pre-Reverse Stock Split shares and post-Reverse Stock Split shares, or the partners of such
partnership. Such partnerships and their partners should consult their own tax advisors. The
discussion does not purport to be complete and does not address stockholders subject to special
rules, such as stockholders that are not U.S. Stockholders, or that are financial institutions,
tax-exempt organizations, insurance companies, dealers in securities, mutual funds, stockholders
who hold the pre-Reverse Stock Split shares as part of a straddle, hedge or conversion transaction
or other risk reduction strategy, stockholders who hold the pre-Reverse Stock Split shares as
qualified small business stock within the meaning of Section 1202 of the Code, stockholders who are
subject to the alternative minimum tax provisions of the Code and stockholders who acquired their
pre-Reverse Stock Split shares pursuant to the exercise of employee stock options or otherwise as
compensation. Furthermore, we have not obtained a ruling from the IRS or an opinion of legal or tax
counsel with respect to the consequences of the Reverse Stock Split.
ACCORDINGLY, ALL STOCKHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE SPECIFIC FEDERAL,
STATE, LOCAL AND FOREIGN TAX CONSEQUENCES TO THEM OF THE REVERSE STOCK SPLIT.
The Reverse Stock Split is intended to constitute a recapitalization within the meaning of
Section 368 of the Code. Assuming the Reverse Stock Split qualifies as a recapitalization, a U.S.
Stockholder generally will not recognize gain or loss on the Reverse Stock Split, except (as
discussed below) to the extent of cash, if any, received in lieu of a fractional share interest in
the post-Reverse Stock Split shares. The aggregate tax basis of the post-Reverse
Stock Split shares received will be equal to the aggregate tax basis of the
pre-Reverse Stock Split shares exchanged therefor (excluding any portion of the holders basis
allocated to fractional shares), and the holding period of the post-Reverse Stock Split shares
received will include the holding period of the pre-Reverse Stock Split shares exchanged.
7
A holder of the pre-Reverse Stock Split shares who receives cash in lieu of a fractional share
interest in the post-Reverse Stock Split shares will generally recognize gain or loss equal to the
difference between the portion of the tax basis of the pre-Reverse Stock Split shares allocated to
the fractional share interest and the cash received. Such gain or loss will be a capital gain or
loss and will be short term if the pre-Reverse Stock Split shares were held for one year or less
and long term if held more than one year. It is assumed for this purpose that cash will be paid in
lieu of fractional shares only as a mechanical rounding off of fractions resulting from the
exchange rather than separately bargained-for consideration. It is also assumed that the Reverse
Stock Split is not being undertaken to increase any stockholders proportionate ownership of the
Company. No gain or loss will be recognized by the Company as a result of the Reverse Stock Split.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information as of June 3, 2011, based on information obtained
from public records and our books and records regarding the persons named below, with respect to
the beneficial ownership of shares of our Common Stock and Series E Preferred, respectively, by:
(i) each person or a group known by us to be the owner of more than five percent (5%) of each class
of our outstanding voting securities, (ii) each director, (iii) each executive officer and (iv) all
officers and directors as a group. Except as otherwise indicated, each person shown in the table
has voting and investment power with respect to the shares listed next to his or her name. Except
as otherwise indicated, the address for each person listed in the table below is c/o ViewCast.com,
Inc., 3701 W. Plano Parkway, Suite 300, Plano, TX 75075.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of
|
|
|
|
|
|
|
Percentage
|
|
|
|
|
|
|
|
Common
|
|
|
Shares of Series
|
|
|
of Series E
|
|
|
|
Shares of
|
|
|
Stock
|
|
|
E Preferred
|
|
|
Preferred
|
|
|
|
Common Stock
|
|
|
Beneficially
|
|
|
Stock
|
|
|
Stock
|
|
Name and Address of
|
|
Beneficially
|
|
|
Owned (1),
|
|
|
Beneficially
|
|
|
Beneficially
|
|
Beneficial Owner
|
|
Owned
|
|
|
(2)
|
|
|
Owned
|
|
|
Owned
|
|
Directors and Executive Officers
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
JOSEPH AUTEM
|
|
|
148,200
|
(3)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DAVID W. BRANDENBURG
|
|
|
4,584,934
|
(4)
|
|
|
8.22
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ADRIAN GIUHAT
|
|
|
25,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SHEREL D. HORSLEY
|
|
|
125,000
|
(5)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LAURIE L. LATHAM
|
|
|
635,183
|
(6)
|
|
|
1.13
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
GEORGE C. PLATT
|
|
|
757,194
|
(7)
|
|
|
1.35
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
JOHN W. SLOCUM, JR.
|
|
|
135,000
|
(8)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DAVID T. STONER
|
|
|
738,771
|
(9)
|
|
|
1.31
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All executive officers and
directors as a group (eight (8)
persons)
|
|
|
7,149,282
|
(10)
|
|
|
12.34
|
%
|
|
|
|
|
|
|
|
|
Certain Persons
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
H.T. ARDINGER, JR.
|
|
|
35,523,545
|
(11)
|
|
|
49.55
|
%
|
|
|
80,000
|
(13)
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
JOHN J. SCAMARDELLA
|
|
|
3,208,347
|
(12)
|
|
|
5.76
|
%
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Less than one percent (1%)
|
8
|
|
|
1.
|
|
A person is deemed to be the beneficial owner of securities that can be acquired by such
person within 60 days from June 3, 2011 upon the exercise of options or conversion of shares
of Series E Preferred Stock. Each beneficial owners percentage ownership is determined by
assuming that options that are held by such person (but not those held by any other person)
and which are exercisable within 60 days from June 3, 2011 have been exercised and that shares
of Series E Preferred Stock that are held by such person have been converted. Unless otherwise
indicated, we believe that all persons named in the table have sole voting and investment
power with
respect to all shares of Common Stock beneficially owned by them.
|
|
2.
|
|
Based on a total of 55,699,005 shares issued and outstanding which excludes treasury stock,
plus, for each person listed, any Common Stock that person has the right to acquire within 60
days from June 3, 2011 pursuant to options or the conversion of shares of Series E Preferred
Stock.
|
|
3.
|
|
Includes the following shares issuable under the 1995 Directors Option Plan upon exercise of
options: (i) 10,000 shares issuable upon exercise at $0.755 per share, (ii) 10,000 shares
issuable upon exercise at $0.26 per share, (iii) 10,000 shares issuable upon exercise at
$0.615 per share, and (iv) 10,000 shares issuable upon exercise at $0.37 per share; includes
under the 2005 Stock Incentive Plan (the
2005 Plan
): (i) 25,000 shares issuable upon
exercise at $0.39 per share, (ii) 25,000 shares issuable upon exercise at $0.42 per share,
(iii) 25,000 shares issuable upon exercise at $0.475 per share, and (iv) 25,000 shares
issuable upon exercise at $0.17 per share.
|
|
4.
|
|
Information is based on filings made with the SEC under Sections 13 or 16 of the Exchange Act
through June 3, 2011 and includes: (i) 934,717 shares held directly by Mr. Brandenburgs
spouse and (ii) the following shares issuable under the 2005 Plan upon exercise of options:
(i) 50,000 shares issuable upon exercise at $0.315 per share, and (ii) 25,000 shares issuable
upon exercise at $0.17 per share.
|
|
5.
|
|
Includes the following shares issuable under the 2005 Plan upon exercise of options: (i)
50,000 shares issuable upon exercise at $0.20 per share, (ii) 25,000 shares issuable upon
exercise at $0.42 per share, (iii) 25,000 shares issuable upon exercise at $0.475 per share,
and (iv) 25,000 shares issuable upon exercise at $0.17 per share.
|
|
6.
|
|
Includes the following shares issuable under the 1995 Employee Stock Option Plan (the
1995
Employee Plan
) and the 2005 Plan upon exercise of options: (i) 90,278 shares issuable upon
exercise at $0.33 per share, (ii) 62,500 shares issuable upon exercise at $0.17 per share,
(iii) 60,000 shares issuable upon exercise at $0.485 per share, (iv) 50,000 shares issuable
upon exercise at $0.285 per share, (v) 62,500 shares issuable upon exercise at $0.42 per
share, and (vi) 250,000 shares issuable upon exercise at $0.48 per share.
|
|
7.
|
|
Includes the following shares issuable under the 1995 Employee Plan and the 2005 Plan upon
exercise of options: (i) 200,000 shares issuable upon exercise at $0.33 per share, (ii) 50,000
shares issuable upon exercise at $0.17 per share, (iii) 70,000 shares issuable upon exercise
at $0.485 per share, (iv) 70,000 shares issuable upon exercise at $0.285 per share, (v) 12,500
shares issuable upon exercise at $0.42 per share, and (vi) 130,000 shares issuable upon
exercise at $0.48 per share.
|
|
8.
|
|
Includes the following shares issuable under the 2005 Plan upon exercise of options: (i)
33,335 shares issuable upon exercise at $0.20 per share, (ii) 25,000 shares issuable upon
exercise at $0.42 per share, (iii) 25,000 shares issuable upon exercise at $0.475 per share,
and (iv) 25,000 shares issuable upon exercise at $0.17 per share.
|
|
9.
|
|
Includes the following shares issuable under the 1995 Employee Plan and the 2005 Plan upon
exercise of options: (i) 144,444 shares issuable upon exercise at $0.33 per share, (ii) 83,333
shares issuable upon exercise at $0.17 per share, (iii) 60,000 shares issuable upon exercise
at $0.485 per share, (iv) 50,000 shares issuable upon exercise at $0.285 per share, (v) 62,500
shares issuable upon exercise at $0.42 per share, and (vi) 262,500 shares issuable upon
exercise at $0.48 per share.
|
|
10.
|
|
Includes an aggregate of 2,218,890 shares of our Common Stock issuable under the 1995
Directors Option Plan, 1995 Employee Plan and 2005 Plan, upon the exercise of stock options.
|
|
11.
|
|
Information is based on filings made with the SEC under Sections 13 or 16 of the Exchange Act
through June 3, 2011 and includes: (i) 181,501 shares owned by Mr. Ardingers spouse, (ii)
5,562,687 shares owned by Ardinger LP, and (iii) 16,000,000 shares of Common Stock reserved
for issuance upon the conversion of $8,000,000 of Series E Convertible Redeemable Preferred
Stock to Common Stock at $0.50 per share owned by Ardinger LP.
|
|
12.
|
|
Based on filings made with the SEC under Sections 13 or 16 of the Exchange Act through June
3, 2011.
|
|
13.
|
|
All 80,000 shares of Series E Preferred Stock are held directly by Ardinger LP.
|
9
DESCRIPTION OF CAPITAL STOCK
Common Stock
Generally
.
Currently, we are authorized to issue 100,000,000 shares of Common Stock.
As of the Record Date, 55,699,005 shares of our Common Stock outstanding were held by approximately
285 beneficial holders. Upon filing the Share Increase Amendment with the Secretary of State of
the State of Delaware, we will be authorized to issue 200,000,000 shares of our Common Stock.
Voting Rights
.
The holders of our Common Stock are entitled to one vote for each
share held of record on all matters to be voted on by stockholders. There is no cumulative voting
with respect to the election of directors, with the result that the holders of more than fifty
percent (50%) of the shares of Common Stock voting for the election of directors can elect all of
the directors.
Dividends
.
Holders of our Common Stock are entitled to receive dividends when, as and
if declared by the Board in its discretion, out of funds legally available therefor. Any dividends
we pay will be mailed to the stockholders of record as reflected in the share transfer records
maintained by our transfer agent and registrar.
Liquidation Preference
.
In the event of liquidation, dissolution or winding up, the
holders of our Common Stock are entitled to share ratably in our assets, if any, legally available
for distribution to them after payment of debts and liabilities and after provision has been made
for each class of stock, if any, having liquidation preference over the Common Stock. Holders of
our Common Stock have no conversion, preemptive or other subscription rights, and there are no
redemption or sinking fund provisions applicable to our Common Stock.
Stockholder Meetings
.
Our Bylaws provide that the stockholders shall have annual
meetings, called by the Board, and special meetings, called by the President, or the President or
Secretary upon the written request of a majority of the Board, or at the request in writing of the
holders owning at least a majority in amount of the entire capital stock of the corporation issued
and outstanding and entitled to vote. The stockholders entitled to vote at such meeting must be
given written notice of each such meeting of stockholders. In the case of special meetings, the
purpose or purposes for which the meeting is called shall be given to each stockholder entitled to
vote, not less than ten or more than sixty days before the meeting. Any notice of a stockholder
meeting will be mailed to the stockholders of record as reflected in the share transfer books
maintained by our transfer agent and registrar. Since our Certificate of Incorporation and Bylaws
are silent concerning whether our stockholders may take action by written consent in lieu of any
annual or special meeting of stockholders, Section 228 of the DGCL permits our stockholders to take
action by written consent in lieu of a meeting of stockholders.
Preferred Stock
Generally
.
We are authorized to issue 5,000,000 shares of preferred stock, par value
$.0001 per share with such designations, rights and preferences as may be determined from time to
time by the Board. Accordingly, the Board is empowered, without stockholder approval, to issue
preferred stock with dividend, liquidation, conversion, voting or other rights which could
adversely affect the voting power or other rights of the holders of our common stock. In the event
of issuance, the preferred stock could be utilized, under certain circumstances, as a method of
discouraging, delaying or preventing a change in control of ViewCast. As of the Record Date,
80,000 shares of our Series E Preferred Stock are issued and outstanding.
Series E Preferred Stock
Rank
.
The Series E Preferred Stock shall rank (i) senior to all classes of Common
Stock and to any class of preferred stock established hereafter by the Board of Directors of the
Company, the terms of which expressly provide that it ranks junior to the Series E Preferred Stock
as to rights on liquidation, winding-up and dissolution of the Company (collectively referred to,
together with all classes of Common Stock, as
Junior Stock
), (ii) on parity with the Series B
Preferred Stock and Series C Preferred Stock as to rights on liquidation, winding up and
dissolution, and (iii) subject to certain conditions, on a parity with each other class of
preferred stock established hereafter by the Board and subject to approval by the majority of the
holders of the Series E Preferred Stock, the terms of which expressly provide that such class or
series shall rank on a parity with the Series E Preferred Stock as
to rights on liquidation, winding-up and dissolution (collectively, with the Series B
Preferred Stock and Series C Preferred Stock, referred to as
Parity Stock
).
10
Preference on Liquidation
.
Upon any voluntary or involuntary liquidation, dissolution
or winding-up of the Company, holders of Series E Preferred Stock shall be entitled to be paid, out
of the assets of the Company available for distribution to stockholders, the Liquidation Preference
(as defined below) before any distribution is made on any Junior Stock, including, without
limitation, any Common Stock. Liquidation Preference means $100 per share of Series E Preferred
Stock (the Stated Value) multiplied by 107%.
Redemption Rights
.
At any time the Company shall have the right to redeem at the
Liquidation Preference per share, in whole or in part, shares of Series E Preferred Stock, to the
extent permitted by applicable law and so long as the Company shall have sufficient cash available
on the optional redemption date to effect such optional redemption.
Voting Rights
.
Each holder of Series E Preferred Stock shall be entitled to full
voting rights and powers equal to the voting rights and powers of the holders of the Common Stock.
For each share of Series E Preferred Stock held, the holder thereof shall be entitled to the number
of votes into which such share of Series E Preferred Stock could then be converted into Common
Stock. Each holder of Series E Preferred Stock shall be entitled to vote, together with holders of
the Common Stock, with respect to any question upon which holders of the Common Stock have the
right to vote.
Conversion Rights
.
Each holder of shares of Series E Preferred Stock shall have the
right, subject to any applicable laws and regulations, at any time at the holders option to
convert any shares of Series E Preferred Stock based on the Stated Value into shares of Common
Stock at the Conversion Price. Before the execution of the Exchange Agreement, each share of
Series E Preferred Stock was convertible at the average closing sale price for our Common Stock on
the OTC Bulletin Board during the 20 trading days ending on the last trading day prior to the
notice of conversion being submitted.
Pursuant to the Exchange Agreement, until May 4, 2012 (the
Temporary Conversion Period
),
each outstanding share of Series E Preferred Stock became convertible, at the option of the holder
of such Series E Preferred Stock, into shares of Common Stock at a temporary conversion price of
$0.50 per share of underlying Common Stock for each share of Series E Preferred Stock, with each
share of Series E Preferred Stock having a value of $100.00 per share (the
Temporary Conversion
Price
). If at any time during the Temporary Conversion Period, the Company completes, in one
transaction or a series of related transactions, the placement(s) of Common Stock for total
aggregate net proceeds of at least $7,000,000 (a
Securities Placement
), each outstanding share of
Series E Preferred Stock shall automatically convert into the corresponding number of shares of
Common Stock at the Temporary Conversion Price. During the Temporary Conversion Period, if any
shares of Series E Preferred Stock are converted, all other outstanding shares of Series E
Preferred Stock shall also automatically convert at the Temporary Conversion Price.
Restriction on Distributions
.
If and so long as at least 10,000 shares of Series E
Preferred Stock remain outstanding, the Company shall not declare or pay any dividend or make any
distributions on, or, directly or indirectly, purchase, redeem or satisfy any mandatory redemption,
sinking fund or other similar obligation in respect of, Junior Stock or warrants, rights or options
exercisable for or convertible into any Junior Stock.
Optional Conversion by the Company
.
If the closing sale price for the Common Stock on
the trading market during any 20 consecutive trading day period is at least 150% of the then
applicable Conversion Price (the
Conversion Trigger
), the Company shall have the right once in
any twelve-month period to issue a notice of conversion to the holders of the Series E Preferred
Stock within 40 trading days after the first occurrence of the Conversion Trigger during the
twelve-month period requiring each holder to convert a specified number of shares of Series E
Preferred Stock up to a maximum of each holders pro rata share of up to 20,000 shares of Series E
Preferred Stock; provided, however, if during a twelve-month period the Company has the right to
cause such a conversion and does not, then, if during the next twelve-month period the Company has
the right to cause such conversion, it shall have the right to cause the conversion of up to a
holders pro rata portion of up to 40,000 shares of Series E Preferred Stock; provided further,
however, the Company shall never be entitled to cause the conversion of more than a holders pro
rata portion of 40,000 shares of Series E Preferred Stock.
11
Registration Rights Agreement
In connection with the issuance of our Series E Preferred Stock, we entered into a
Registration Rights Agreement, dated December 11, 2006, with Mr. Ardinger (the
Registration Rights
Agreement
). The Registration Rights Agreement provides that any time after January 1, 2008, the
holders of at least the lesser of (a) 10,000,000 shares of the Registrable Securities (as defined
below) or (b) Registrable Securities with a market value of $10,000,000 shall have the right to
make a demand that we register for resale the number of Registrable Securities set forth in the
demand. Upon receiving a demand, each other holder has the right to include in the registration any
of such other holders Registrable Securities. The Company shall file a registration statement
covering such Registrable Securities within sixty (60) days following the demand. In addition, the
holders have the right to include the Registered Securities on any other registration statement
filed by the Company, subject to certain exceptions. Registrable Securities includes, among
other things, the shares of Common Stock issuable or issued upon conversion of the Series E
Preferred Stock.
Certificate of Incorporation and Bylaws
Our Certificate of Incorporation and Bylaws include a number of provisions that may have the
effect of delaying, deferring or preventing another party from acquiring control of us and
encouraging persons considering unsolicited tender offers or other unilateral takeover proposals to
negotiate with our Board rather than pursue non-negotiated takeover attempts. These provisions
include the items described below.
Blank Check Preferred Stock
.
We believe that the availability of the preferred stock
under our Certificate of Incorporation provides us with flexibility in addressing corporate issues
that may arise. The existence of authorized but unissued shares of preferred stock may enable our
Board to render more difficult or to discourage an attempt to obtain control of us by means of a
merger, tender offer, proxy contest or otherwise. For example, if in the due exercise of its
fiduciary obligations, our Board were to determine that a takeover proposal is not in the best
interests of our stockholders, our Board could cause shares of preferred stock to be issued without
stockholder approval in one or more private offerings or other transactions that might dilute the
voting or other rights of the proposed acquirer or insurgent stockholder or stockholder group. In
this regard, our Certificate of Incorporation grants our Board broad power to establish the rights
and preferences of authorized and unissued shares of preferred stock. Our Board will make any
determination to issue shares based on its judgment as to our and our stockholders best interests.
Special Meetings
.
Our Bylaws provide that our chairman of the board, our president, a
majority of our Board or, upon written request, the holders of at least 50.1% of the total number
of our outstanding capital stock, may call a special meeting of stockholders. Therefore,
stockholders holding less than a majority of our outstanding shares of capital stock may not call a
special meeting of stockholders.
No Cumulative Voting
.
Under the DGCL, the right to vote cumulatively does not exist
unless our Certificate of Incorporation specifically authorizes cumulative voting. Our Certificate
of Incorporation does not grant stockholders the right to vote cumulatively.
Amendment to Certificate of Incorporation and Bylaws
.
As required by the DGCL, any
amendment of our Certificate of Incorporation must first be approved by a majority of our Board,
and if required by law or our Certificate of Incorporation, must thereafter be approved by a
majority of the outstanding shares entitled to vote on the amendment and a majority of the
outstanding shares of each class entitled to vote thereon as a class, if applicable. Our Bylaws
may be amended by the affirmative vote of a majority of the directors then in office.
Indemnification
.
Under our Certificate of Incorporation and Bylaws, we have agreed to
indemnify, to the fullest extent permitted under the DGCL, our directors, officers, employees and
agents who are a party or threatened to be made a party to any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or investigative by reason of
the fact that such person is or was a director, officer, employee or agent of the Company against
any and all expenses, liabilities or other matters (including attorneys fees), judgments, fines
(including excise taxes assessed on a person with respect to an employee benefit plan), and amounts
paid in settlement incurred by him in connection with such action, suit, or proceeding. Such right
of
indemnification shall continue as to a person who has ceased to be a Director, officer,
incorporator, employee, partner, trustee, or agent and shall inure to the benefit of the heirs and
personal representatives of such a person.
12
Delaware Anti-Takeover Statute
As a Delaware corporation, we are subject to Section 203 of the DGCL. In general, Section 203
prevents us from engaging in a business combination with an interested stockholder (generally, a
person owning 15% or more of our outstanding voting stock) for three years following the time that
person becomes a 15% stockholder unless either:
|
|
|
before that person became a 15% stockholder, our Board approved the transaction in
which the stockholder became a 15% stockholder or approved the business combination;
|
|
|
|
upon completion of the transaction that resulted in the stockholders becoming a 15%
stockholder, the stockholder owns at least 85% of our voting stock outstanding at the
time the transaction began (excluding stock held by directors who are also officers and
by employee stock plans that do not provide employees with the right to determine
confidentially whether shares held subject to the plan will be tendered in a tender or
exchange offer); or
|
|
|
|
after the transaction in which that person became a 15% stockholder, the business
combination is approved by our Board and authorized at a stockholder meeting by at
least two-thirds of the outstanding voting stock not owned by the 15% stockholder.
|
Delaware law defines the term business combination to encompass a wide variety of
transactions with, or caused by, an interested stockholder, including mergers, asset sales and
other transactions in which the interested stockholder receives or could receive a benefit on other
than a pro rata basis with other stockholders. This law could have an anti-takeover effect with
respect to transactions not approved in advance by our Board, including discouraging takeover
attempts that might result in a premium over the market price for the shares of the common stock.
Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is Continental Stock Transfer and Trust
Company, 2 Broadway, New York, New York 10004.
DISSENTERS RIGHTS OF APPRAISAL
Under the DGCL, stockholders are not entitled to dissenters rights with respect to any of the
actions described in this information statement.
INTEREST OF CERTAIN PERSONS
IN OPPOSITION TO MATTERS ACTED UPON
None of the Companys directors or officers at any time since the beginning of the last fiscal
year has any substantial interest, direct or indirect, by security holdings or otherwise, in the
Amendments that was not shared by all other holders of the Companys capital stock. No director of
the Company opposed the actions taken by the Company set forth in this Information Statement.
PROPOSAL BY SECURITY HOLDERS
No security holder has asked the Company to include any proposal in this Information
Statement.
EXPENSE OF INFORMATION STATEMENT
The expenses of mailing this Information Statement will be borne by us, including expenses in
connection with the preparation and mailing of this Information Statement and all documents that
now accompany or may after
supplement it. It is contemplated that brokerage houses, custodians, nominees, and
fiduciaries will be requested to forward the Information Statement to the beneficial owners of our
Common Stock held of record by such persons and that we will reimburse them for their reasonable
expenses incurred in connection therewith.
13
MULTIPLE STOCKHOLDERS SHARING ONE ADDRESS
In accordance with Rule 14a-3(e)(1) promulgated pursuant to the Exchange Act, one Information
Statement may be delivered to two or more stockholders who share an address, unless we have
received contrary instructions from one or more of the stockholders. We will deliver promptly upon
written or oral request a separate copy of this Information Statement to a stockholder at a shared
address to which a single copy of this Information Statement was delivered. Requests for
additional copies of this Information Statement, and requests that in the future separate
communications be sent to stockholders who share an address, should be directed to: ViewCast.com,
Inc., 3701 W. Plano Parkway, Suit 300, Plano, Texas 75075, Attn: Investor Relations, or by calling
telephone number (214) 488-7200 and asking for investor relations.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements, and registration statements
with the SEC. These filings are available to the public over the Internet at the SECs website at
http://www.sec.gov. You may also read and copy any document we file with the SEC without charge at
the public reference facility maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549.
You may also obtain copies of the documents at prescribed rates by writing to the Public Reference
Section of the SEC at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference facilities.
By Order of the Board
David T. Stoner
Chief Executive Officer
Date: _____, 2011
14
APPENDIX A
CERTIFICATE OF AMENDMENT
CERTIFICATE OF INCORPORATION
VIEWCAST.COM, INC.
(Pursuant to Sections 228 and 242 of the Delaware General
Corporation Law of the State of Delaware)
ViewCast.com, Inc. (the
Corporation
), a corporation organized and existing under the General
Corporation Law of the State of Delaware (the
DGCL
), does hereby certify as follows:
First
. Article Fourth of the Companys Certificate of Incorporation, as amended, is hereby
deleted and replaced in its entirety by the following language:
ARTICLE IV
Fourth. The Corporation shall have authority to issue two hundred million
(200,000,000) shares of Common Stock, par value of $.0001 per share, and five
million (5,000,000) shares of preferred stock, par value of $.0001 per share.
The Board of the Corporation is authorized to determine or alter the voting powers,
designations, preferences and relative, participating, optional or other rights, if
any, and the qualifications, limitation or restrictions thereof, if any, granted to
or imposed upon any wholly-unissued class and/or series of capital stock in any
resolution or resolutions of the Board originally fixing the number of shares
constituting any such wholly-unissued class and/or series, to increase or decrease
(but not below the number of shares of any such class and/or series then
outstanding) the number of shares of any class and/or series, and to fix the number
of shares of any such class and/or series.
Second
. This Certificate of Amendment to the Certificate of Incorporation of the
Corporation has been approved by the majority of the shares of outstanding stock of the Corporation
entitled to vote thereon and duly adopted by the Board of the Corporation by written consent in
accordance with the provisions of Sections 228 and 242 of the DGCL.
Third
. This Certificate of Amendment to the Certificate of Incorporation shall become
effective upon its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to the
Certificate of Incorporation to be signed this
_____
day of
_____, 2011.
|
|
|
|
|
|
|
|
|
VIEWCAST.COM, INC.:
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
ViewCast com (CE) (USOTC:VCST)
Gráfica de Acción Histórica
De May 2024 a Jun 2024
ViewCast com (CE) (USOTC:VCST)
Gráfica de Acción Histórica
De Jun 2023 a Jun 2024