Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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All Communications Corporation
(Exact name of Registrant as specified in its charter)
New Jersey 22-3124655
(State or Other (I.R.S. Employer
Jurisdiction of Identification
Number)
Incorporation or
Organization)
225 Long Avenue
Hillside, New Jersey 07205
(Address of Principal Executive Offices) (Zip Code)
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All Communications Corporation
Stock Option Plan
(Full Title of the Plan)
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Robert B. Kroner, Esq.
Vice President and General Counsel
All Communications Corporation
225 Long Avenue
Hillside, New Jersey 07205
(Name and address of agent for service)
(973) 282-2000
(Telephone number, including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate Amount of
to be registered registered share (1) offering price (1) registration fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value(2) 3,086,500 $4,8125 $14,853,782 $4,130
Shares
=========================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(c) and 457(h) using the average of the bid
and asked prices reported on the OTC Electronic Bulletin Board on April
29, 1999.
(2) Pursuant to Rule 416, there are also being registered such additional
securities as may become issuable pursuant to the anti-dilution provisions
of the stock options.
<PAGE>
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 to register 1,500,000 shares of the Registrant's common
stock, no par value ("Common Stock"), issuable pursuant to the Registrant's
Stock Option Plan (the "Plan") and 1,586,500 shares of Common Stock issuable
pursuant to exercise of stock options granted by the Registrant to its employees
and directors.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to Rule 428(b)(1) under the Securities Act of 1933, as
amended (the "Act"), the documents containing the information specified in this
Part I will be sent or given to participants under the Plan and other holders of
stock options for which shares of Common Stock are being registered hereby.
These documents, together with the documents incorporated by reference herein
pursuant to Item 3 of Part II below, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference herein the following
documents which have been filed with the Securities and Exchange Commission (the
"Commission"):
(a) the Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1998 (file no. 1-12937) that contains audited financial
statements for the Registrant's fiscal year ended December 31, 1998;
(b) all other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") since the end of the
Company's fiscal year ended December 31, 1998; and
(c) the description of Common Stock set forth in the Company's
registration statements on Form 8-A filed with the Commission pursuant to
Section 12 of the Exchange Act and any amendment or report filed for the purpose
of updating such descriptions.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment hereto that
indicates that all securities offered have been sold or that deregisters all
such securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document that also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
<PAGE>
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Registrant is organized under the laws of the State of New
Jersey. The New Jersey Business Corporation Act, as amended (the "Act"),
provides that a New Jersey corporation has the power generally to indemnify its
directors, officers, employees and other agents against expenses and liabilities
in connection with any proceeding involving such person by reason of his being a
corporation agent, other than a proceeding by or in the right of the
corporation, if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal proceeding, such person had no reasonable cause to
believe his conduct was unlawful. In the case of an action brought by or in the
right of the corporation, indemnification of directors, officers, employees and
other agents against expenses is permitted if such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation; however, no indemnification is permitted in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation, unless and only to the extent that the
New Jersey Superior Court, or the court in which such proceeding was brought,
shall determine upon application that despite the adjudication of liability, but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to such indemnification. Expenses incurred by a director,
officer, employee or other agent in connection with a proceeding may be, under
certain circumstances, paid by the corporation in advance of the final
disposition of the proceeding as authorized by the board of directors. The power
to indemnify and advance expenses under the Act does not exclude other rights to
which a director, officer, employee or other agent of the corporation may be
entitled to under the certificate of incorporation, by laws, agreement, vote of
stockholders, or otherwise provided that no indemnification is permitted to be
made to or on behalf of such person if a judgment or other final adjudication
adverse to such person establishes that his acts or omissions were in breach of
his duty of loyalty to the corporation, were not in good faith or involved a
violation of the law, or resulted in the receipt of such person of an improper
personal benefit.
Under the Act, a New Jersey corporation has the power to purchase
and maintain insurance on behalf of any director, officer, employee or other
agent against any expenses incurred in any proceeding and any liabilities
asserted against him by reason of his being or having been a corporate agent,
whether or not the corporation has the power to indemnify him against such
expenses and liabilities under the Act.
All of the foregoing powers granted to a New Jersey corporation may
be exercised by such corporation notwithstanding the absence of any provision in
its certificate of incorporation or by-laws authorizing the exercise of such
powers. A New Jersey corporation may also provide in its certificate of
incorporation that a director or officer shall not be personally liable, or
shall be liable only to extent therein provided, to the corporation or its
shareholders for damages for breach of a duty owed to the corporation or its
shareholders, except for any breach of duty based upon an act or omission (a) in
breach of such person's duty of loyalty to the corporation or its shareholders,
(b) not in good faith or involving a knowing violation of law or (c) resulting
in receipt by such person of an improper personal benefit.
The Registrant's Certificate of Incorporation provides that all
directors and officers of the Company shall be indemnified to the fullest extent
permitted by the Act. The Registrant's Certificate of Incorporation further
provides that directors shall not be personally liable to the Company or its
shareholders.
The directors and officers of the Registrant are insured by policies
purchased by the Registrant against liability and expenses incurred in their
capacity as directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
2
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
- ------ -----------
4.1 Certificate of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form SB-2, Registration No. 333-02932).
4.2 By-laws of the Registrant, as amended (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form SB-2,
Registration No. 333-21069).
4.3 Registrant's Stock Option Plan (incorporated by reference to Exhibit
10.10 to the Registrant's Registration Statement on Form SB-2,
Registration No. 333-02932).
4.4 Amendment No. 1 to Registrant's Stock Option Plan (incorporated
by reference to Exhibit 10.13 to the Registrant's Annual Report
on Form 10-K for the fiscal year ended December 31, 1998,
Commission File No. 1-12937).
5* Opinion of Shanley & Fisher, P.C.
23.1* Consent of Shanley & Fisher, P.C. (included in Exhibit 5).
23.2* Consent of BDO Seidman, LLP.
- ----------
* Filed herewith.
Item 9. Undertakings.
(a) The undersigned Registrant will:
(1) File, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a fundamental
change in the information in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) Include any additional or changed material
information on the plan of distribution;
3
<PAGE>
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with the Commission by the Registrant under
the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) For determining liability under the Securities Act of
1933, treat each such post-effective amendment as a new registration
statement of the securities offered, and the offering of such
securities at that time to be the initial bona fide offering
thereof.
(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Township of Hillside, State of New Jersey, on the 27 day of
April, 1999.
ALL COMMUNICATIONS CORPORATION
By: /s/ Richard Reiss
----------------------------------
Richard Reiss
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signatures Title Date
/s/ Richard Reiss Director, Chairman of April 27, 1999
- -------------------------- the Board, President
Richard Reiss and Chief Executive
Officer (principal
executive officer)
/s/ Scott Tansey Vice President - April 27, 1999
- -------------------------- Finance (principal
Scott Tansey financial and
accounting officer)
/s/ Eric Friedman Director April 27, 1999
- --------------------------
Eric Friedman
/s/ Andrea Grasso Director April 27, 1999
- --------------------------
Andrea Grasso
/s/ Robert B. Kroner Director April 27, 1999
- --------------------------
Robert B. Kroner
/s/ Peter Maluso Director April 27, 1999
- --------------------------
Peter Maluso
5
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
5 Opinion of Shanley & Fisher, P.C.
23.1 Consent of Shanley & Fisher, P.C. (included in Exhibit 5)
23.2 Consent of BDO Seidman, LLP
SHANLEY & FISHER, P.C.
131 Madison Avenue
Morristown, New Jersey 07962
(973) 285-1000
April 30, 1999
All Communications Corporation
225 Long Avenue
Hillside, New Jersey 07205
Ladies and Gentlemen:
We have acted as special counsel to All Communications Corporation, a New
Jersey corporation (the "Company"), in connection with the preparation and
filing under the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
the offer and sale of up to 3,086,500 shares of the Company's common stock, no
par value (the "Shares") pursuant to the Company's Stock Option Plan (the
"Plan").
For purposes of this opinion, we have examined originals or copies,
certified or otherwise, identified to our satisfaction, of the Registration
Statement, together with exhibits filed as a part thereof, and all such other
documents, records, certificates, including certificates of public officials,
and other instruments as we have deemed necessary or appropriate.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing under
the laws of the State of New Jersey.
2. The Shares have been duly authorized and, when sold in the manner and
for the consideration contemplated by the Plan and the Registration Statement,
will be validly issued, fully paid and non-assessable.
<PAGE>
All Communications Corporation
April 30, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name therein. By giving the
foregoing consent, we do not admit that we are persons whose consent is required
under Section 7 of the Act.
Very truly yours,
SHANLEY & FISHER, P.C.
Consent of Independent Certified Public Accountant
Board of Directors and Shareholders
All Communications Corporation
We hereby consent to the incorporation by reference in this Form S-8 of our
report dated February 16, 1999 (except Note 6, which is as of March 17, 1999)
relating to the consolidated financial statements of All Communications
Corporation and Subsidiary appearing in the Company's Form 10-K for the year
ended December 31, 1998.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Woodbridge, NJ
April 27, 1999
