As filed with the Securities and Exchange Commission on October 16, 2000.
REGISTRATION NO.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ALLSTATES WORLDCARGO, INC.
(Exact name of registrant as specified in its charter)
NEW JERSEY 22-3487471
(State or other jurisdiction of (I.R.S. Employer identification No.)
incorporation or organization)
4 Lakeside Drive South, Forked River, New Jersey, 08731
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(Address of principal executive offices)
2000 STOCK OPTION AND STOCK ISSUANCE PLAN
--------------------------------
(Full title of the Plan)
Craig D. Stratton, Chief Financial Officer
Allstates WorldCargo, Inc.
4 Lakeside Drive South
Forked River, NJ 08731
(609) 693-5950
--------------------------------
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
STEPHEN M. ROBINSON, ESQ.
STEPHEN M. ROBINSON, P.A.
172 Tuckerton Road
Medford, New Jersey 08055
(856) 596-5530
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Securities Amount Offering Aggregate Amount of
to be Registered to be Price Offering Registration
Registered Per Unit Price Fee
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Common Stock, $.0001
par value (2) 4,500,000 shares $ 0.10(1) $450,000 $118.80
TOTAL REGISTRATION FEE $118.80
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(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of $0.10 per share based
upon a valuation utilized by the Company's auditors for the Company's
1999 fiscal audit, for the 4,500,000 shares reserved for issuance under
the 2000 Stock Option and Stock Issuance Plan ("2000 Plan").
(2) The amount being registered represents the maximum number of shares of
Common Stock that may be issued by the Registrant upon the exercise of
options and other stock-based awards granted or which may be granted
under our 2000 Plan. Pursuant to Rule 416, there are also being
registered additional shares of Common Stock as may become issuable
pursuant to the anti-dilution provisions of such plan.
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PART II--INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in this
Registration Statement and are deemed to be a part hereof from the date of
filing such documents by Allstates WorldCargo, Inc. (the "Corporation"):
(a) The Corporation's Annual Report on Form 10-KSB for the fiscal year
ended September 30, 1999;
(b) The Corporation's Quarterly Reports on Form 10-QSB for the quarters
ended December 31, 1999, March 31, 2000 and June 30, 2000;
(c) The Corporation's proxy statement dated January 24, 2000, filed with
the Securities and Exchange Commission on January 24, 2000; and
(d) All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document, all or a portion
of which is 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 in any subsequently filed document which also is or is
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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The Company's legal counsel, Stephen M. Robinson, Esq., beneficially
owns shares of common stock of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The by-laws of the Company provide that every person who is or was a
director or officer, employee or agent of the Company, or any person who serves
or has served in any capacity with any other enterprise at the request of the
Company, shall be indemnified by the Company to the fullest extent permitted
by law. The Company shall indemnify the persons listed above against all
expenses and liabilities reasonably incurred by or imposed on them in
connection with any proceedings to which they have been or may be made parties,
or any proceedings in which they may have become involved by reason of being
or having been a director or officer of the Company, or by reason of serving
or having served another enterprise at the request of the Company, whether or
not in the capacities of directors or officers of the Company at the time the
expenses or liabilities are incurred.
New Jersey has enacted the following statutory indemnification provisions:
NJSA 14A:3-5. Indemnification of directors, officers and employees -
(1) As used in this section,
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(a) "Corporate agent" means any person who is or was a director, officer,
employee or agent of the indemnifying corporation or of any constituent
corporation absorbed by the indemnifying corporation in a consolidation or
merger and any person who is or was a director, officer, trustee, employee or
agent of any other enterprise, serving as such at the request of the
indemnifying corporation, or of any such constituent corporation, or the legal
representative of any such director, officer, trustee, employee or agent;
(b) "Other enterprise" means any domestic or foreign corporation, other
than the indemnifying corporation, and any partnership, joint venture, sole
proprietorship, trust or other enterprise, whether or not for profit, served
by a corporate agent;
(c) "Expenses" means reasonable costs, disbursements and counsel fees;
(d) "Liabilities" means amounts paid or incurred in satisfaction of
settlements, judgments, fines and penalties;
(e) "Proceeding" means any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding, and any
appeal therein and any inquiry or investigation which could lead to such
action, suit or proceeding; and
(f) References to "other enterprises" include employee benefit plans;
references to "fines" include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the indemnifying corporation" include any service as a corporate agent which
imposes duties on, or involves services by, the corporate agent with respect
to an employee benefit plan, its participants, or beneficiaries; and a person
who acted in good faith and in a manner the person reasonably believed to be
in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this section.
(2) Any corporation organized for any purpose under any general or special
law of this State shall have the power to indemnify a corporate agent against
his expenses and liabilities in connection with any proceeding involving the
corporate agent by reason of his being or having been such a corporate agent,
other than a proceeding by or in the right of the corporation, if
(a) such corporate agent 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
(b) with respect to any criminal proceeding, such corporate agent had no
reasonable cause to believe his conduct was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not of itself create a presumption that
such corporate agent did not meet the applicable standards of conduct set forth
in paragraphs 14A:3-5(2)(a) and 14A:3-5(2)(b).
(3) Any corporation organized for any purpose under any general or special
law of this State shall have the power to indemnify a corporate agent against
his expenses in connection with any proceeding by or in the right of the
corporation to procure a judgment in its favor which involves the corporate
agent by reason of his being or having been such corporate agent, if he 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, in such proceeding no
indemnification shall be provided in respect of any claim, issue or matter as
to which such corporate agent shall have been adjudged to be liable to the
corporation, unless and only to the extent that the 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 circumstances of the
case, such corporate agent is fairly and reasonably entitled to indemnity for
such expenses as the Superior Court or such other court shall deem proper.
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(4) Any corporation organized for any purpose under any general or special
law of this State shall indemnify a corporate agent against expenses to the
extent that such corporate agent has been successful on the merits or otherwise
in any proceeding referred to in subsections 14A:3-5(2) and 14A:3-5(3) or in
defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2) and, unless ordered
by a court, under subsection 14A:3-5(3) may be made by the corporation only as
authorized in a specific case upon a determination that indemnification is
proper in the circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection 14A:3-5(2) or subsection
14A:3-5(3). Unless otherwise provided in the certificate of incorporation or
bylaws, such determination shall be made
(a) by the board of directors or a committee thereof, acting by a majority
vote of a quorum consisting of directors who were not parties to or otherwise
involved in the proceeding; or
(b) if such a quorum is not obtainable, or, even if obtainable and such
quorum of the board of directors or committee by a majority vote of the
disinterested directors so directs, by independent legal counsel, in a written
opinion, such counsel to be designated by the board of directors; or
(c) by the shareholders if the certificate of incorporation or bylaws or
a resolution of the board of directors or of the shareholders so directs.
(6) Expenses incurred by a corporate agent in connection with a proceeding
may be paid by the corporation in advance of the final disposition of the
proceeding as authorized by the board of directors upon receipt of an
undertaking by or on behalf of the corporate agent to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified as
provided in this section.
(7) (a) If a corporation upon application of a corporate agent has failed
or refused to provide indemnification as required under subsection 14A:3-5(4)
or permitted under subsections 14A:3-5(2), 14A:3-5(3) and 14A:3-5(6), a
corporate agent may apply to a court for an award of indemnification by the
corporation, and such court
(i) may award indemnification to the extent authorized under subsections
14A:3-5(2) and 14A:3-5(3) and shall award indemnification to the extent
required under subsection 14A:3-5(4), notwithstanding any contrary
determination which may have been made under subsection 14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by, and
subject to the provisions of, subsection 14A:3-5(6), if the court shall find
that the corporate agent has by his pleadings or during the course of the
proceeding raised genuine issues of fact or law.
(b) Application for such indemnification may be made
(i) in the civil action in which the expenses were or are to be incurred
or other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding. If the application
is for indemnification arising out of a civil action, it shall set forth
reasonable cause for the failure to make application for such relief in the
action or proceeding in which the expenses were or are to be incurred or other
amounts were or are to be paid.
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The application shall set forth the disposition of any previous
application for indemnification and shall be made in such manner and form as
may be required by the applicable rules of court or, in the absence thereof,
by direction of the court to which it is made. Such application shall be upon
notice to the corporation. The court may also direct that notice shall be
given at the expense of the corporation to the shareholders and such other
persons as it may designate in such manner as it may require.
(8) The indemnification and advancement of expenses provided by or granted
pursuant to the other subsections of this section shall not exclude any other
rights, including the right to be indemnified against liabilities and expenses
incurred in proceedings by or in the right of the corporation, to which a
corporate agent may be entitled under a certificate of incorporation, bylaw,
agreement, vote of shareholders, or otherwise; provided that no
indemnification shall be made to or on behalf of a corporate agent if a
judgment or other final adjudication adverse to the corporate agent establishes
that his acts or omissions (a) were in breach of his duty of loyalty to the
corporation or its shareholders, as defined in subsection (3) of >
N.J.S.14A:2-7, (b) were not in good faith or involved a knowing violation of
law or (c) resulted in receipt by the corporate agent of an improper personal
benefit.
(9) Any corporation organized for any purpose under any general or special
law of this State shall have the power to purchase and maintain insurance on
behalf of any corporate 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 would have the power to
indemnify him against such expenses and liabilities under the provisions of
this section. The corporation may purchase such insurance from, or such
insurance may be reinsured in whole or in part by, an insurer owned by or
otherwise affiliated with the corporation, whether or not such insurer does
business with other insureds.
(10) The powers granted by this section may be exercised by the
corporation, notwithstanding the absence of any provision in its certificate
of incorporation or bylaws authorizing the exercise of such powers.
(11) Except as required by subsection 14A:3-5(4), no indemnification shall
be made or expenses advanced by a corporation under this section, and none
shall be ordered by a court, if such action would be inconsistent with a
provision of the certificate of incorporation, a bylaw, a resolution of the
board of directors or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause of
action asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or the
rights of indemnification to which a corporate agent may be entitled.
(12) This section does not limit a corporation's power to pay or reimburse
expenses incurred by a corporate agent in connection with the corporate agent's
appearance as a witness in a proceeding at a time when the corporate agent has
not been made a party to the proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
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ITEM 8. EXHIBITS.
Exhibit
Number Description
------- ------------
5 Opinion of Stephen M. Robinson, P.A.
4.1 2000 Stock Option and Stock Incentive Plan of the Registrant (filed
as an exhibit to Registrant's Form 10-QSB for the period ending
June 30, 2000, filed August 14, 2000)
23.1 Independent Auditors' Consent
23.2 Legal Counsel Consent is contained in Exhibit 5
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
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(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 Section 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.
(h) 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 of 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.
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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 Lacey, State of New Jersey on the 16th day
of October, 2000.
ALLSTATES WORLDCARGO, INC.
BY: /s/ SAM DIGIRALOMO
---------------------------------
Sam DiGiralomo, President and CEO
DATED: October 16, 2000
---------------------------------
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
BY: /s/ Joseph M. Guido Chairman of the Board of October 16,2000
--------------------- Directors ----------------
Joseph M. Guido
BY: /s/ Sam DiGiralomo President, CEO and Director October 16,2000
--------------------- ----------------
Sam DiGiralomo
BY: /s/ Barton C. Theile Exec. Vice President, COO October 16,2000
--------------------- and Director ----------------
Barton C. Theile
BY: /s/ Craig D. Stratton Secretary, Treasurer, October 16,2000
--------------------- CFO and Director ----------------
Craig D. Stratton
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EXHIBIT 5
[LETTERHEAD]
October 16, 2000
Securities and Exchange Commission
Division of Corporate Finance
450 Fifth Street, NW
Washington, DC 20549
Re: Allstates WorldCargo, Inc.
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to Allstates WorldCargo, Inc., a New Jersey
corporation (the "Company"), in connection with the registration of
4,500,000 shares of common stock, $.0001 par value (the "Shares"), with the
Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "1933 Act") pursuant to a registration
statement on Form S-8 (the "Registration Statement"). The Shares are
registered on behalf of the Company, and will be issued pursuant to the
Company's 2000 Stock Option and Stock Incentive Plan (the "Plan").
This opinion is being delivered in accordance with the requirements
of Item 601(b)(5)(i) of Regulation S-B under the 1933 Act.
As counsel to the Company, we have examined such documents and
records as we deemed appropriate.
In rendering this opinion, we have relied, as to matters of fact,
upon representations and certificates of officers and employees of the
Company, and communications from, government authorities and public
officials; and we have assumed the genuineness of signatures of all persons
signing any documents, the authority of all persons signing any document,
the authority of all governmental authorities and public officials, the
truth and accuracy of all matters of fact set forth in all certificates
furnished to us, the authenticity of all documents submitted to us as
originals and the conformity to original documents of all documents
submitted to us as certified, conformed or photostatic copies.
Based upon the foregoing, we are of the opinion that the Shares
issuable upon exercise of options issued under the Plans, when issued and
delivered upon exercise of such options in accordance with the terms of the
Plans, will be validly issued, fully paid and non-assessable.
This opinion is solely for your information in connection with the
offer and sale of the Shares by the Company, and is not, without the prior
written consent of this firm, to be quoted in full or in part or otherwise
referred to in any documents nor to be filed with any governmental agency or
other persons, other than with the Commission and various state securities
administrators in connection with the qualification of the Shares, to which
reference and filings we hereby consent. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is
required under Section 7 of the 1933 Act or the rules and regulations of the
Commission.
Very truly yours,
STEPHEN M. ROBINSON, P.A.
/s/ Stephen M. Robinson
BY: Stephen M. Robinson
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EXHIBIT 23.1
Consent of Independent Accountants
----------------------
As independent accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports included in Allstates
WorldCargo, Inc.'s Form 10-KSB for the year ended September 30, 1999, and to
all references to our Firm included in this registration statement.
Cowan, Gunteski & Co., P.A.
Toms River, New Jersey
October 2, 2000
