<PAGE> 1
As Filed with the Securities and Exchange Commission on July 8, 1996
Registration No. 33-89596
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-2
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
-----------------
ABC DISPENSING TECHNOLOGIES, INC.
(F/K/A) AMERICAN BUSINESS COMPUTERS CORPORATION
(Exact name of Registrant as specified in its charter)
FLORIDA 59-2001203
- ------------------------------ -----------------------------------
(state or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
451 Kennedy Road
Akron, Ohio 44305
(330) 733-2841
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
GARY T. SALHANY
Treasurer
451 Kennedy Road
Akron, Ohio 44305
(330) 733-2841
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
With a copy to:
Lee A. Albanese, Esq.
St. John & Wayne
245 Park Avenue
New York, New York 10167-4498
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO
TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this Form, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 463(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
Page 1 of 27 Pages
Exhibit Index on page 26
<PAGE> 2
AMERICAN BUSINESS COMPUTERS CORPORATION
CROSS-REFERENCE SHEET
Showing the Location in the Prospectus of
Information Required by Part I of Form S-2
Pursuant to Item 501(b) of Regulation S-K
<TABLE>
<S> <C> <C>
1. Forepart of the Registration
Statement and Outside Front
Cover Page of Prospectus................................ Front Cover Page of
Prospectus
2. Inside Front and Outside Back
Cover Pages of Prospectus............................... Inside Front and Outside
Back Cover Page of
Prospectus
3. Summary Information, Risk
Factors and Ratio of Earnings
to Fixed Charges...................................... The Company, Risk Factors
4. Use of Proceeds............................................ Use of Proceeds
5. Determination of Offering Price............................ Not Applicable
6. Dilution................................................... Not Applicable
7. Selling Security Holders................................... Selling Stockholders
8. Plan of Distribution....................................... Plan of Distribution
9. Description of Securities to be
Registered............................................... Description of Securities
10. Interests of Named Experts and
Counsel................................................. Not Applicable
11. Material Changes........................................... Recent Developments;
The Company; Risk Factors;
Description of Securities;
Plan of Distribution
12. Incorporation of Certain
Information by Reference................................ Incorporation of Certain
Documents by Reference
13. Disclosure of Commission
Position on Indemnification
for Securities Act Liabilities.......................... Not Applicable
</TABLE>
2
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PROSPECTUS
ABC DISPENSING TECHNOLOGIES, INC.
(F/K/A) AMERICAN BUSINESS COMPUTERS CORPORATION
322,000 Shares of Common Stock
786,000 Common Stock Purchase Warrants
This Prospectus relates to the offer and sale of the following securities
of ABC Dispensing Technologies, Inc. (the "Company"):
(i) 786,000 redeemable common stock purchase warrants, 645,000 of
which expire on August 17, 1999 and 141,000 of which expire on
September 13, 1999 (the "Warrants"), to be offered and sold by the
registered holders thereof (the "Selling Warrantholders"); and
(ii) 322,000 shares of the Company's Common Stock ("Common Stock" and
hereinafter the Common Stock and the Warrants are collectively
referred to as the "Securities") to be offered and sold by the
Company.
The Warrants offered pursuant to this Prospectus were issued by the
Company to the Selling Warrantholders in connection with private placements of
the Company's securities completed in August and September 1994 (the
"Placements"). The Warrants expire on August 17, 1999, for those Warrants
issued on August 17, 1994, and September 13, 1999, for those Warrants issued on
September 13, 1994, and each entitles the holder to purchase one share of
Common Stock for $2.00. The exercise price of the Warrants is subject to
adjustment in certain events pursuant to the anti-dilution provisions thereof.
The Warrants are redeemable at a price of $.10 per warrant, prior to their
expiration, provided that (i) prior written notice is given to the
Warrantholders; (ii) the average of the bid and asked price per share of Common
Stock for a period of twenty (20) consecutive trading days after the issuance
of the Warrant by the Company has been at least $3.00; (iii) the shares
issuable upon exercise of the Warrants shall be subject to an effective
registration statement under the Securities Act of 1933, as amended (the
"Act"); and (iv) such redemption shall not take place prior to the expiration
of six (6) months from the date of issuance of the respective Warrant. The
twenty (20) consecutive trading days requirement at the minimum share price of
$3.00 set forth in subparagraph (ii) above was satisfied as of November 16,
1994. In addition, the Company has represented to the Warrantholders that it
will not call the Warrants prior to the expiration of eight (8) weeks from the
date the registration statement relating to the shares underlying the Warrants
has been declared effective.
The Warrants to be offered by the Selling Warrantholders may be sold
from time to time by the Selling Warrantholders, or by their pledgees,
transferees or other successors in interest at prices and on terms then
prevailing or at prices related to the then current market price of the
Securities, or in privately negotiated transactions. The Selling Warrantholders
and any broker-dealers, agents or underwriters that participate with the
Selling Warrantholders in the distribution of the Warrants may be deemed to be
"underwriters" within the meaning of the Act and any commission received by
them and any profit on the resale of the Warrants purchased by them may be
deemed to be underwriting commissions or discounts under the Act. See "Plan of
Distribution."
Of the 322,000 shares of Common Stock offered hereby by the Company,
125,000 shares are intended for distribution to The Mezzanine Financial Fund,
L.P. ("Mezzanine") (which is affiliated with Herbert Pearlman, the Company's
Chairman) in satisfaction of interest charges through August 1996 due Mezzanine
under the credit facility it provides the Company and approximately $150,000 of
principal under such credit facility (which as of June 1, 1996 was $500,000).
For a description of the Mezzanine credit facility, see the Company's
Definitive Proxy Statement dated January 30, 1996 - "Certain Transactions
Involving Management". Additionally, 49,700 shares of the Common Stock offered
hereby by the Company is intended for distribution to a law firm in
satisfaction of an approximately $74,600 obligation by the Company in
connection with legal representation during litigation. See "Risk Factors -
Shares Eligible for Future Sale". The offering of the balance of approximately
147,300 shares offered hereby will be commenced promptly by the Company and be
offered on a continuous basis at prices to be determined at or prior to the
time of sale, which offering may continue for a period of in excess of 30 days
from the date of this Prospectus. The specific terms of the offering, the
offering price and the net proceeds to the Company from the sale of the 147,300
shares of Common Stock will be set forth in an accompanying supplement to this
Prospectus (each, a "Prospectus Supplement").
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The shares of Common Stock offered by the Company hereby may be sold
through certain of the Company's directors and executive officers, none of whom
will receive any commissions or other form of compensation, may be sold to or
through underwriters, acting as principals for their account or as agents, and
also may be sold through agents designated from time to time. The accompanying
Prospectus Supplement will set forth the names of any underwriters or agents
involved in the sale of the Common Stock offered hereby by the Company, the
amount of Common Stock, if any, to be purchased by any underwriters and the
compensation, if any, of such underwriters or agents. There are no escrow
arrangements with respect to the offering of the Common Stock. The continuous
offering of the Common Stock by the Company will be made on an "any and all"
basis; no minimum will be required to be sold by the Company. See "Plan of
Distribution."
The Company's Common Stock is presently listed on the National
Association of Securities Dealers Automated Quotation ("NASDAQ") Small Cap
Market System under the symbol "ABCC." The closing price for the Common Stock
as reported by NASDAQ on July 3,1996 was $1.50.
This Prospectus also relates to such additional shares of Common Stock
which may be issuable pursuant to the anti-dilution provisions of the Warrants
which shares are being registered pursuant to Rule 416 promulgated under the
Act.
SEE "RISK FACTORS" FOR CERTAIN MATTERS TO BE
CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THE OFFERING WILL BE MADE ON AN "ANY AND ALL" BASIS; NO MINIMUM WILL
BE REQUIRED TO BE SOLD BY THE COMPANY AND NO ESCROW ARRANGEMENTS WILL BE MADE
THE DATE OF THE PROSPECTUS IS _____, 1996
No person is authorized in connection with the offering made by this
Prospectus to give any information or to make any representations not contained
or incorporated by reference in this Prospectus, and any information or
representation not contained or incorporated by reference in this Prospectus
must not be relied upon as having been authorized by the Company. This
Prospectus is not an offer to sell, or a solicitation of an offer to buy, by
any person in any jurisdiction in which it is unlawful for that person to make
an offer or solicitation. Neither the delivery of this Prospectus nor any sale
made under this Prospectus shall, under any circumstance, create any
implication that the information in this Prospectus is correct as of any time
subsequent to the date of this Prospectus.
2
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Available Information 4
Incorporation of Certain Documents by Reference 5
Recent Developments 5
The Company 6
Risk Factors 8
Use of Proceeds 13
Plan of Distribution 14
Selling Securityholders 16
Description of Securities 19
Legal Matters 21
Experts 21
</TABLE>
3
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AVAILABLE INFORMATION
The Company has filed a Registration Statement on Form S-2 (together
with all amendments thereto referred to herein as the "Registration Statement")
under the Act, with the Securities and Exchange Commission (the "Commission")
covering the shares of Common Stock and Warrants being offered by this
Prospectus. This Prospectus does not contain all the information set forth or
incorporated by reference in the Registration Statement and the exhibits and
schedules relating thereto, certain portions of which have been omitted as
permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the securities offered by this
Prospectus, reference is made to the Registration Statement and the exhibits
and schedules thereto which are on file at the offices of the Commission and
may be obtained upon payment of the fee prescribed by the Commission, or may be
examined without charge at the offices of the Commission. Statements contained
in this Prospectus as to the contents of any contract or other documents
referred to are not necessarily complete, and are qualified in all respects by
such reference.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance
therewith, files reports, proxy and information statements and other
information with the Commission. Such reports, proxy and information statements
and other information can be inspected and copied at the public reference
facilities maintained by the Commission at Judiciary Plaza, Room 1024, 450
Fifth Street N.W., Washington, D.C. 20549; and at the regional offices of the
Commission at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; and 7 World Trade Center, Suite 1300, New York, New York
10048. Copies of such material can be obtained from the Public Reference
Section of the Commission, in Washington, D.C. 20549, at prescribed rates.
--------------------------
No person is authorized in connection with the offering made by this
Prospectus to give any information or to make any representations not contained
or incorporated by reference in this Prospectus, and any information or
representation not contained or incorporated by reference in this Prospectus
must not be relied upon as having been authorized by the Company. This
Prospectus is not an offer to sell, or a solicitation of an offer to buy, by
any person in any jurisdiction in which it is unlawful for that person to make
an offer or solicitation. Neither the delivery of this Prospectus nor any sale
made under this Prospectus shall, under any circumstance, create any
implication that the information in this Prospectus is correct as of any time
subsequent to the date of this Prospectus.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 0-14922)
pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended April 29, 1995 as amended by the Company's Proxy
Statement referred to in Item 3 below.
2. The Company's Quarterly Reports on Form 10-Q for each of the
quarters ended July 29, 1995, October 28, 1995 and January
27, 1996.
3. The Company's definitive Proxy Statement dated January 30,
1996 for its Annual Meeting of Shareholders held on March 1,
1996.
4. All other reports filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
termination of the offering, since the date of this
Prospectus.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modified or superseded such statement. Any such statement so modified or
superseded shall not be deemed, except as to modified or superseded, to
constitute part of this Prospectus.
This Prospectus is accompanied by the Company's (i) Annual Report on
Form 10-K for the fiscal year ended April 29, 1995; (ii) definitive Proxy
Statement dated January 30, 1996; and (iii) Quarterly Report on Form 10-Q for
the quarterly period ended January 27, 1996. The Company will provide, without
charge, to each person to whom this Prospectus is delivered, upon written or
oral request of that person, a copy of all documents incorporated by reference
into the Registration Statement of which this Prospectus is a part, other than
exhibits to those documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests for such documents should be
directed to: ABC Dispensing Technologies, Inc., 451 Kennedy Road, Akron, Ohio
44305, Attention: Gary T. Salhany, Treasurer (telephone (330) 733-2841).
RECENT DEVELOPMENTS
On May 21, 1996, the Company changed its name from
"American Business Computers Corporation" to "ABC Dispensing Technologies,
Inc." as a more accurate description of the Company's business.
In April 1996, the Company effected a private placement of 291,667
shares of its Common Stock to foreign investors pursuant to Regulation S
promulgated under the Act. The Common Stock was sold at a price of $1.20 per
share or $350,000 in the aggregate. After deducting finder's fees and legal
fees
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<PAGE> 8
and expenses incurred by the Company associated with such private placement of
approximately $45,000, the net proceeds to the Company were approximately
$305,000.
The Company is actively seeking additional private placement
opportunities with domestic and/or foreign investors in an effort to raise
approximately $2,000,000 to satisfy its short-term working capital
requirements.
In an effort to address its current liquidity constraints, the Company
has restructured its indebtedness with The Mezzanine Financial Fund, L.P.
(which is affiliated with Mr. Pearlman, the Company's Chairman) such that the
Company will issue 125,000 shares of Common Stock (currently registered under
the Act; see "Risk Factors -Shares Eligible for Future Sale") to Mezzanine in
satisfaction of interest charges through August 1996 and approximately $150,000
of outstanding principal (which as of June 1, 1996 was $500,000). Additionally,
10% of the net proceeds to the Company of any private placement of the
Company's securities will be applied to the reduction of the principal amount
of the loan, plus an additional 5% of any such net proceeds exceeding $1.5
million dollars. For a description of the Mezzanine credit facility, see the
Company's Definitive Proxy Statement dated January 30, 1996 --"Certain
Transactions Involving Management."
During May 1996, the Company agreed to satisfy an approximately
$74,600 obligation to a law firm which represented the Company in connection
with securities litigation, by issuing approximately 49,700 shares of its
Common Stock (currently registered under the Act) see "Risk Factors --Shares
Eligible for Future Sale."
The Company currently has an approximately $8,500,000 backlog which is
not expected to impact the Company's revenue until later in the first quarter
of 1997 and thereafter. Processing of this backlog has been delayed by the
Company pursuant to requests from its customers so as to coincide with later
than expected roll out dates for the applicable customer projects.
THE COMPANY
The Company designs proprietary dispensing systems which dispense and
blend liquids, powders and other ingredients to a uniform and high degree of
accuracy. The Company also custom designs and manufactures its own proprietary
dispensing equipment to meet the needs of its customers, using standard
micro-processors. The Company's technology is protected by a growing patented
copyright portfolio. The Company has twenty-six (26) issued patents, with an
additional fourteen (14) filed and pending. The Company's long-term objective
is to be a worldwide source of dispensing technology possessing substantial
marketing capabilities consisting of industry-specific marketing divisions.
The Company offers a complete range of dispensing technology
commercialization services. In addition to custom design and manufacturing, the
Company also provides training, installation and product service. Dispensing is
an integral part of a large number of multi-billion-dollar industries. In many
industries, dispensing is a mechanical function and one of the few operations
that remains largely untouched by advanced technology.
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To date, the Company has developed and is marketing unique dispensing
systems for the beverage, paint, chemical coatings, concrete and
animal-husbandry industries. Virtually all of the Company's revenues to date
have been derived from the sale of its computerized paint-tint dispensing
systems, which it has begun to market in Europe, Latin America and the Far
East, and its beverage dispensing systems. The Company has recently begun field
testing for its dispense-and-spray system for anti-bacterial products and its
concrete additive dispensing systems. Among other areas the Company is
developing dispensing systems for the chemical coating market which could have
commercial applications in the automotive, printing and other industries.
The Company's predecessor, SEBRN Corporation (Florida), was
incorporated in Florida in 1980 and acquired American Beverage Control
Corporation in 1985. SEBRN changed its name to American Business Computers
Corporation in 1986. The Company's principal executive offices are located at
451 Kennedy Road, Akron, Ohio 44305, and its telephone number is (330)
733-2841.
RISK FACTORS
The Securities offered hereby involve a high degree of risk.
Prospective investors should carefully consider, along with the other
information contained herein, the following risk factors before purchasing any
Securities offered hereby:
1. HISTORY OF LOSSES; ADDITIONAL CAPITAL REQUIREMENTS. The Company has
reported a net loss for each year of operation since its inception except for
the fiscal year ended April 30, 1989, in which it reported net income of
$154,000. The Company reported a net loss of $2,681,000 on revenues of
$3,359,000 for the fiscal year ended April 29, 1995, as compared to a net loss
of $1,378,000 on revenues of $5,010,000 for the fiscal year ended April 30,
1994. For the nine months ended January 27, 1996, the Company reported a net
loss of $919,000 on revenues of $4,236,000 as compared to a net loss of
$1,991,000 on revenues of $2,994,000 for the comparable period ending January
31, 1995. It is anticipated that the Company will continue to incur losses in
the near future and no assurance can be given that the Company will generate
net income in the future. As a result, the Company has an immediate need for
capital resources to fund operating losses as well as research and development
expenditures. It is anticipated that the expenditures associated with marketing
new products and continued research and development will cause the Company to
incur operating losses and cash flow deficiencies until such time, if any, as
the Company generates sufficient additional revenues from operations.
Accordingly, the Company will be required to seek alternative sources of
working capital with funds from additional equity or debt financings or joint
venture or other collaborative arrangements. No assurance can be given that any
such additional funds will be available to the Company on acceptable terms, if
at all. If adequate funds are not available from operations or additional
sources of financing, the Company's business will be materially adversely
affected. See "Recent Developments."
2. UNCERTAINTY OF MARKET ACCEPTANCE. The success of the Company's
dispensing systems will depend heavily on the Company's ability to gain
acceptance, both domestically and internationally, of leading companies in
industrial, food service and other markets. Acceptance of the Company's
technology by industry leaders will be determined in large part by the
Company's ability to access such entities and to demonstrate the performance
features and cost benefit of its dispensing products. The
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Company has had limited success to date in the paint industry and the
beverage industry. No assurance can be given that the Company's dispensing
technology will meet with general market acceptance.
3. DEPENDENCE ON MAJOR CUSTOMER. During the fiscal year ended April
29, 1995 and the nine months ended January 27, 1996, one customer,
Sherwin-Williams, accounted for 59% and 78% respectively, of the Company's
revenues. The loss of this customer would have a material adverse effect on the
Company's revenues, and there can be no assurance that the Company could
replace the revenues from such loss.
4. COMPETITION. The controlled measurement and dispensing equipment
industry is highly competitive and dominated by several large companies with
substantially greater financial resources and name recognition than the
Company. Many of these companies have extensive experience, possess
substantially greater financial, technological and personnel resources than the
Company and, particularly in the food service industry, have received the
approval and support of industry leaders commanding large market shares. No
assurance can be given that the Company will be able to compete successfully in
the controlled measurement and dispensing equipment industry.
5. DIVIDEND POLICY. The Company has not paid dividends on its
Common Stock since its inception and, by reason of its present financial
condition and its projected financial needs, it does not contemplate paying
dividends in the foreseeable future on the Company's Common Stock.
6. SHARES ELIGIBLE FOR FUTURE SALE. Sales of the Company's
Common Stock in the public market by current shareholders or the Company could
adversely affect the market price of the Common Stock. As of June 17, 1996,
the Company has outstanding the following securities:
(1) 1,098,000 shares of Common Stock, the sale of which is
restricted by Rule 144 under the Act, all of which are
subject to registration statements filed under the Act which
would eliminate such restrictions and allow the holders
thereof to offer and sell such Common Stock without
restrictions from time to time in brokered transactions or
otherwise. See "Recent Developments" regarding the proposed
issuance by the Company of approximately 174,700 of shares of
such registered Common Stock.
(2) 1,061,000 shares underlying various warrants and options
issued by the Company with exercise prices that range between
$1.25 and $3.38 per share, all of which shares may, upon
exercise, be offered and sold without restrictions by the
holders thereof in brokered transactions or otherwise
pursuant to effective registration statements under the Act.
(3) 291,667 shares of Common Stock issued in a placement
under Regulation S under the Act during April of 1996, 97,222
shares of Common Stock are available for sale without
restriction, another 97,222 shares will be available for
resale after July 15, 1996 and the balance of the shares will
be available for resale without restriction after August 15,
1996. See description of the Reg. S offering in "Recent
Developments".
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(4) 758,910 shares of Common Stock underlying warrants with
exercise prices that range from $2.04 to $3.50 which will be
subject to restrictions under Rule 144 but are also the
subject of piggyback and demand registration rights, such
that if exercised some or all of such shares could be offered
and sold upon registration without restriction.
(5) 951,814 shares of Common Stock underlying warrants and
options with exercise prices which range from $1.25 to $3.38,
each of which is subject to restrictions under Rule 144 of
the Act unless the Company registers such shares under the
Act.
As of June 17, 1996, the Company had issued and outstanding 16,984,160
shares of Common Stock. Accordingly, assuming exercise of all outstanding
options and warrants and the issuance of all shares of Common Stock registered
under the Act, the shares of Common Stock described above would represent 5.5%,
5.3%, 1.5%, 3.8% and 4.8%, respectively, of the outstanding Common Stock (and
21% in the aggregate). A significant increase in the market sales of the Common
Stock or the availability of such Common Stock would likely have an adverse
impact on the market price for the Common Stock.
USE OF PROCEEDS
Of the 322,000 shares of Common Stock offered hereby by the Company,
125,000 shares are intended for distribution to The Mezzanine Financial Fund,
L.P. (which is affiliated with Herbert Pearlman, the Company's Chairman) in
satisfaction of interest charges through August 1996 and approximately $150,000
of principal (which as of June 1, 1996 was $500,000). For a description of the
Mezzanine credit facility, see the Company's Definitive Proxy Statement dated
January 30, 1996 "Certain Transactions Involving Management". Additionally,
49,700 shares of the Common Stock offered hereby by the Company is intended for
distribution to a law firm in satisfaction of an approximately $74,600
obligation by the Company in connection with legal representation during
litigation. See "Risk Factors - Shares Eligible for Future Sale".
Unless otherwise indicated in a Prospectus Supplement with respect to
the particular shares of Common Stock to which such Prospectus Supplement
relates, the net proceeds to the Company from the sale of all or a portion of
the balance of approximately 147,300 shares of Common Stock offered hereby,
will be used for working capital purposes including the funding of research and
development activities.
The Company will not receive any of the proceeds from the sale of the
Warrants offered hereby by the Selling Warrantholders.
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PLAN OF DISTRIBUTION
This Prospectus relates to the offer and sale of 786,000 Warrants by
the Selling Warrantholders and the offer and sale of 322,000 shares of Common
Stock by the Company.
Common Stock
Of the 322,000 shares of Common Stock offered hereby by the Company,
125,000 shares are intended for distribution to The Mezzanine Financial Fund,
L.P. (which is affiliated with Herbert Pearlman, the Company's Chairman) in
satisfaction of interest charges through August 1996 and approximately $150,000
of principal (which as of June 1, 1996 was $500,000). For a description of the
Mezzanine credit facility, see the Company's Definitive Proxy Statement dated
January 30, 1996 "Certain Transactions Involving Management". Additionally,
49,700 shares of the Common Stock offered hereby by the Company is intended for
distribution to a law firm in satisfaction of an approximately $74,600
obligation by the Company in connection with legal representation during
litigation. See "Risk Factors - Shares Eligible for Future Sale".
The remaining 147,300 shares of Common Stock offered hereby will be
offered by the Company on a continuous basis commencing promptly upon the
effectiveness of this Prospectus and may be sold inside or outside the United
States through underwriters or dealers, directly to investors by directors and
executive officers of the Company, or through agents. The accompanying
Prospectus Supplement will set forth the terms of the offering of the Common
Stock, including the name or names of any underwriters or agents, the purchase
price of the Common Stock and the proceeds to the Company from the sale
thereof, any delayed delivery arrangements, any underwriting discounts and
other items constituting underwriters' compensation, the public offering price
and any discounts or concessions allowed or reallowed or paid to dealers. The
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If underwriters are used in the sale, the Common Stock will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The Common Stock may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The underwriter or underwriters with
respect to a particular underwritten offering and, if an underwriting syndicate
is used, the managing underwriter or underwriters, will be set forth on the
cover of the applicable Prospectus Supplement. Unless otherwise set forth in
the accompanying Prospectus Supplement, the obligations of the underwriters to
purchase the Common Stock will be subject to conditions precedent and the
underwriters will be obligated to purchase all the Common Stock offered hereby
if any shares are purchased.
If dealers are utilized in the sale of the Common Stock, the Company
will sell such Common Stock to the dealers as principals. The dealers may then
resell the Common Stock to the public at varying prices to be determined by
such dealers at the time of resale. The names of any dealers with
10
<PAGE> 13
respect to the Common Stock and the terms of the transaction will be set forth
in the accompanying Prospectus Supplement.
The Common Stock may be sold directly by the Company's directors and
executive officers or through agents designated by the Company from time to
time. None of the Company's directors or executive officers will receive any
commissions or other form of compensation in connection with sales of the
Common Stock. Any agent involved in the offer or sale of the Common Stock will
be named, and any commission payable by the Company to such agent will be set
forth, in the accompanying Prospectus Supplement.
Agents and underwriters may be entitled under agreements entered into
with the Company to indemnification by the Company against certain liabilities,
including liabilities under the Act, or to contribution with respect to
payments which the agents or underwriters may be required to make in respect
thereof. Agents and underwriters may be customers of, may engage in
transactions with, and may perform services for, the Company in the ordinary
course of business.
Warrants
The Warrants are being offered pursuant to this Prospectus by the
Selling Warrantholders and may be sold from time to time by the Selling
Warrantholders, or by their pledgees, transferees or other successors in
interest, by various methods including, but not limited to, one or more of the
following: (a) directly in a privately negotiated transaction; (b) a block
trade in which the broker or dealer so engaged will attempt to sell the
securities as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (c) purchased by a broker or dealer as
principal and resale by such broker or dealer for its own account pursuant to
this Prospectus; (d) an exchange transaction in accordance with the rules of
such exchange; and (e) ordinary brokers transactions and transactions in which
the broker solicits purchases. In effecting sales, brokers or dealers engaged
by the Selling Warrantholders may arrange for other brokers or dealers to
participate. Alternatively, the Selling Warrantholders may from time to time
offer the Warrants through underwriters, dealers or agents who may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Warrantholders and/or the purchasers of the Warrants for whom
they may act as agents. In addition, any of the Warrants which qualify for sale
pursuant to Rule 144 under the Act, or otherwise pursuant to an applicable
exemption under the Act, may be sold other than pursuant to this Prospectus.
The Company will not receive any of the proceeds of the offering of the
Warrants hereunder for the account of the Selling Warrantholders. See "Use of
Proceeds."
The Selling Warrantholders and any such underwriters, dealers, or
agents that participate in the distribution of the Warrants may be deemed to be
"underwriters," within the meaning of the Act and any profit on the sale of
such securities may be deemed underwriting discounts and commissions under the
Act.
If required by applicable law, at the time a particular offer of the
Warrants is made, the Selling Warrantholder may be required to distribute a
supplement to this Prospectus which will set forth the aggregate principal
amount of Warrants being offered and the terms of the offering, including the
name or names of any broker-dealers or agents, the purchase price being paid by
any underwriter for the
11
<PAGE> 14
Warrants purchased from the Selling Warrantholder, any discounts,
commissions and other items constituting compensation from the Selling
Warrantholder and any discounts, commissions allowed or reallowed or paid to
broker-dealers, including the proposed selling price to the public. Such
Prospectus Supplement and, if necessary, post-effective amendment to the
Registration Statement of which this Prospectus is a part, will be filed with
the Commission to reflect the disclosure of additional information with respect
to the distribution of the Warrants.
From time to time the Company may amend this Prospectus by Prospectus
Supplements or post-effective amendments to the Registration Statement of which
this Prospectus is a part, to offer Warrants obtained by persons who may, by
virtue of their relationship to the Company, be deemed underwriters under the
Act.
Under applicable rules and regulations promulgated under the Exchange Act,
any person engaged in a distribution of the Warrants may not enter bids to
purchase or engage in similar trading or market making activities with respect
to the Securities for a period commencing nine (9) business days prior to the
commencement of such distribution and ending with the completion of such
distribution. In addition, and without limiting the foregoing, the Selling
Warrantholders and any person participating in the distribution of the
Securities will be subject to the applicable provisions of the Exchange Act and
the rules and regulations thereunder including, without limitation, Rules 10b-6
and 10b-7, which provisions may limit the timing of purchases and sales of the
Securities by the Selling Securityholders. All of the foregoing may affect the
marketability of the Warrants.
In order to comply with certain states' securities laws, if
applicable, the Warrants will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In certain states the Warrants may
not be sold unless the Warrants have been registered or qualified for sale in
such state, or unless an exemption from registration or qualification is
available and is obtained.
There can be no assurance that the Selling Warrantholders will sell
any or all of the Warrants offered by them hereby.
The Company will bear all expenses of the registration of the
Securities under the Act and all expenses of qualifying the Warrants under
applicable state blue sky laws. The Selling Warrantholders will be responsible
for any and all discounts, commissions and other compensation to underwriters
or dealers in the distribution of the Warrants.
SELLING SECURITYHOLDERS
The following table provides certain information, as of June 17, 1996,
with respect to the Common Stock and the Warrants beneficially owned by each
Selling Warrantholder (which information has been furnished to the Company by
the Selling Warrantholders). Because the Selling Warrantholders may sell all or
part of the Warrants pursuant to this Prospectus and the fact that this
offering is not being underwritten on a firm commitment basis, the amount of
Securities that may be owned after the offering assumes that the Selling
Warrantholders will offer and sell all of the Warrants and not exercise the
Warrants or acquire any other securities issued by the Company. The Warrants
offered by this Prospectus may be offered from time to time, in whole or in
part, by the persons named below or by their
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<PAGE> 15
transferees, as to whom applicable information will, to the extent
required, be set forth in a Prospectus Supplement. See " Plan of Distribution."
<TABLE>
<CAPTION>
Common Stock and Warrants Beneficially Common Stock and Warrants Beneficially Owned
OWNED PRIOR TO THE OFFERING AFTER THE OFFERING (1)
----------------------------- -----------------------
Number of Number of
Shares of Percent of Warrants Shares of Percent of Number
Common Common Number of Percent of that may Common Common of Percent of
SELLING SECURITYHOLDER STOCK(2) STOCK WARRANTS WARRANTS BE OFFERED STOCK (2) STOCK WARRANTS WARRANTS
- ---------------------- -------- ----- --------- -------- ---------- --------- ----- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
William B. Badger 183,795 1.1% 20,000 2.5% 20,000 183,795 1.1% 0 -
Paul M. Bass 50,000(18) * 25,000 3.2% 25,000 50,000(19) * 0 -
Bishop & Co. 284,240 1.7% 50,000 6.4% 50,000 284,240 1.7% 0 -
Michael Cetta 200,000 1.2% 100,000 12.7% 100,000 200,000 1.2% 0 -
John P. Coyle 35,000 * 10,000 1.3% 10,000 35,000 * 0 -
Robert A. Cutting(3) 239,037(3) 1.4% 56,000 7.1% 56,000 239,037(3) 1.4% 0 -
Paul R. Essi(4) 90,000 * 10,000 1.3% 10,000 90,000 * 0 -
Vernon P. Essi(4) 110,200 * 10,000 1.3% 10,000 110,200 * 0 -
Betty W. Green 22,500 * 10,000 1.3% 10,000 22,500 * 0 -
Mark Green 11,600 * 5,000 * 5,000 11,600 * 0 -
Thomas S. Green(5) 89,146(6) * 25,000 3.2% 25,000 89,146(6) * 0 -
Mary F. Hauser 40,000 * 40,000 5.1% 40,000 40,000 * 0 -
George Hooper 20,000 * 10,000 1.3% 10,000 20,000 * 0 -
John L. Hornbeck(7) 50,000(8) * 25,000 3.2% 25,000 50,000(8) * 0 -
Steven L. Kral(9) 10,000 * 5,000 * 5,000 10,000 * 0 -
Herbert Luxenberg(10) 202,500(11) 1.2% 50,000 6.4% 50,000 202,500(11) 1.2% 0 -
Thomas J. Marquez 147,500 * 20,000 2.5% 20,000 147,500 * 0 -
Keith and Jane Moore 20,000 * 10,000 1.3% 10,000 20,000 * 0 -
Herbert M. Pearlman(12) 657,500(13) 3.8% 80,000 10% 80,000 657,500(13) 3.8% 0 -
Keldon S. Pickering 57,000 * 20,000 2.5% 20,000 57,000 * 0 -
Charlie Potter 50,000 * 25,000 3.2% 50,000 25,000 * 0 -
Kenneth G. Puttick 245,000 1.4% 80,000 10% 80,000 245,000 1.4% 0 -
Gary T. Salhany(14) 96,365(15) * 25,000 3.2% 25,000 96,365(15) * 0 -
John L. Strauss 70,000 * 35,000 4.5% 35,000 70,000 * 0 -
Sten G. Svensson 10,000 * 10,000 1.3% 10,000 10,000 * 0 -
Greg W. Takacs 6,500(18) * 5,000 * 5,000 6,500(16) * 0 -
Estate of
Robert F. Vickers(17) 456,650 2.7% 25,000 3.2% 25,000 456,650 2.7% 0 -
</TABLE>
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<PAGE> 16
* less than 1%
(1) The number of shares and percentage of Common Stock beneficially owned
are reported on the basis of regulations of the Commission governing
the determination of beneficial ownership of securities. Under the
Rules of the Commission, a person is deemed to be a "beneficial owner"
of a security if that person has or shares "voting power," which
includes the power to vote or to direct voting of such security or
"investment power" which includes the power to dispose of or to direct
the disposition of such security. A person is also deemed to be a
beneficial owner of any securities of which that person has the right
to acquire beneficial ownership within sixty (60) days.
(2) The shares of Common Stock underlying the Warrants, all of which are
immediately exercisable, are aggregated with other Common Stock
ownership of the Selling Warrantholders since such Warrant ownership
is listed separately in the table.
(3) Robert A. Cutting is the President and Chief Executive Officer and a
Director of the Company includes 100,000 shares of Common Stock
underlying Common Stock Purchase Warrants which expire on August 1,
2000 and have an exercise price of $3.00 per share, and 56,000 shares
of Common Stock underlying Common Stock Purchase Warrants which
expires September 31, 1999 and have an exercise price of $2.00 per
share.
(4) Includes 60,000 shares maintained in First Fiduciary Money Purchase
and Profit Sharing Accounts, in which Messrs. Vernon Essi and Paul
Essi are trustees.
(5) Thomas A. Green is a Vice President of Research and Development of ABC
Dispensing Technologies, Inc., a subsidiary of the Company ("ABC").
(6) Includes 9,046 shares issuable upon the exercise of stock options and
30,000 shares of Common Stock underlying Common Stock Purchase
Warrants expiring August 1, 2000 with an exercise price of $3.00 per
share.
(7) John L. Hornbeck is an Assistant Treasurer of ABC.
(8) Includes 4,068 shares issuable upon the exercise of stock options.
(9) Steven L. Kral is the Research and Development Manager of ABC.
(10) Herbert Luxenburg is a Director of the Company.
(11) Includes 65,000 shares issuable upon the exercise of stock options and
12,500 shares of Common Stock underlying Common Stock Purchase
Warrants expiring June 1, 1998 having an exercise price of $2.00 per
share.
(12) Herbert M. Pearlman is the Chairman of the Board of Directors of the
Company.
(13) Includes 250,000 shares issuable upon the exercise of stock options
and 200,000 shares of Common Stock underlying common stock purchase
warrants with an expiration date August 1, 2000 having an exercise
price of $3.00 per share.
(14) Gary T. Salhany is the Treasurer and past Secretary of the Company.
(15) Includes 10,365 shares issuable upon the exercise of stock options and
30,000 shares of Common Stock issuable upon the exercise of Common
Stock Purchase Warrants expiring August 1, 2000 and having an exercise
price of $3.00 per share.
(16) Includes 1,500 shares issuable upon the exercise of stock options.
(17) Includes 306,650 shares owned by KERS & Co., a nominee partnership for
the Vickers Trusts and 50,000 shares of Common Stock underlying common
stock purchase warrants issued to KERS & Co. with an expiration date
of June 1, 1998 with an exercise price of $2.00 per share.
(18) Includes 25,000 shares of Common Stock underlying common stock
purchase warrants with an expiration date of June 1, 1998 having an
exercise price of $2.00 per share.
14
<PAGE> 17
DESCRIPTION OF SECURITIES
Common Stock
The Company's authorized capital stock consists of 20,000,000 shares
of its $0.01 par value Common Stock of which, as of June 17, 1996 16,984,160
shares are issued and outstanding and are validly issued, fully paid and
non-assessable.
All shares of the Common Stock have equal voting rights and, when
validly issued and outstanding, have one vote per share in all matters to be
voted upon by stockholders. Cumulative voting in the election of Directors is
not allowed.
The shares of the Common Stock, have no preemptive or conversion
rights, no redemption or sinking fund provisions, and are not liable for
further calls or assessments. Each share of the Common Stock is entitled to
share ratably in any assets available for distribution to the holders of its
equity securities upon liquidation of the Company.
Holders of the Common Stock are entitled to receive dividends when and
as declared by the Company's Board of Directors out of funds legally available.
Any such dividends may be paid in cash, property or shares of the Common Stock.
The Company has not paid any cash dividends since its inception and presently
anticipates that earnings will be retained for future development of the
Company's business, and that no dividends on its Common Stock will be declared
in the foreseeable future.
Warrants
The Warrants have been issued by the Company in the
Placements pursuant to two Stock Purchase Agreements (collectively, the
"Purchase Agreement") dated as of August 17, 1994 and September 13, 1994,
respectively, between the Company and each of the Selling Securityholders. Each
certificate for the Warrants (the "Warrant Certificate") entitles the
registered owner ("Warrantholder") to purchase one share of Common Stock for
each Warrant represented thereby at an exercise price of $2.00 per share,
subject to adjustment in certain circumstances. The Warrants are immediately
exercisable and may be assigned or transferred; provided, however, that no
assignment or transfer of the Warrants, in whole or in part, shall become
effective until an assignment, in the form attached to the Warrant Certificate,
is delivered to the Company's transfer agent along with the original of the
Warrant Certificate and, in the event the Warrants have not been registered
under the Act, an opinion of the Company's counsel that registration of the
Warrants under the Act is not required.
The Warrants can be exercised by surrendering to the Company at its
principal office the Exercise Agreement attached to the Warrant Certificate
signed by the Warrantholder or his duly authorized agent indicating such
Warrantholder's election to exercise all or a portion of the Warrants evidenced
by such Warrant Certificate. Surrendered Warrant Certificates must be
accompanied by a
15
<PAGE> 18
payment of the aggregate exercise price of the Warrants to be
exercised (the "Warrant Price"), which payment may be made in the form of cash,
by certified check or by wire transfer in an amount equal to the Warrant Price.
Upon surrender of the Warrants and payment of the Warrant Price, the
Company shall deliver or cause to be delivered, to or upon written order of the
exercising Warrantholders, certificates representing the number of shares of
Common Stock so purchased. If fewer than all of the Warrants evidenced by any
Warrant Certificate are exercised, the Company shall deliver to the exercising
Warrantholder a new Warrant Certificate representing the unexercised Warrants.
The Warrants terminate upon the earlier to occur of the following:
(i) five (5) years from the date of the purchase of such
Warrant from the Company (August 17, 1999 or September 13, 1999, as the case
may be), or
(ii) on such date the Warrants are called for redemption by
the Company.
The Company has the right to call all or part of the Warrants prior to
their exercise on or at any time after the date on which the average of the
final bid and asked price per share of the Common Stock, as listed and reported
on the NASDAQ System, exceeds Three and 00/100 Dollars ($3.00) for each of the
twenty (20) consecutive trading days immediately proceeding such date (the
"Trigger Date"); provided, however, that if the Trigger Date, as determined
under subparagraphs (i) and (ii) above occurs prior to the expiration of six
(6) months from the date of the purchase of such Warrant from the Company, the
Trigger Date shall be extended to February 17, 1995, in the case of Warrants
purchased on August 17, 1994, and March 13, 1995, in the case of Warrants
purchased on September 13, 1994. The twenty (20) consecutive trading days
requirement at the minimum share price of $3.00 set forth above was satisfied
as of November 16, 1994.
The Company shall pay to the Warrantholder the sum of ten cents ($.10)
for each Warrant called (the "Call Price"). The Company shall give notice of
its election to call the Warrants by mailing to the Warrantholder, by certified
mail at the Warrantholder's address as registered with the Company and its
transfer agent (the "Call Notice"). The Company's election to call the Warrants
shall be effective as of the date the Call Notice is mailed to the
Warrantholder, unless such Call Notice provides for a later date, and the
Warrantholder shall not be entitled to exercise the Warrants after the date of
such notice, or such later date, if any, specified in the Call Notice. If only
a portion of the Warrants are to be called by the Company at a given time, the
call of any such Warrants shall be made on a pro-rata basis.
The Warrantholder shall be entitled to receive the Call Price within
ten (10) days of the Warrantholder's presentation and surrender of the Warrant
Certificate at the place designated by the Company in the Call Notice. If the
Company has called only a portion of the Warrants, the Company shall deliver to
the Warrantholder, along with the Call Price, a new Warrant Certificate
evidencing the rights of the registered holder to purchase the remaining shares
of Common Stock underlying the remaining Warrants.
From and after the date of the Call Notice or such later date, if any,
specified in the Call Notice, all rights of the Warrantholder in the Company
with respect to the Warrants shall cease, except for the
16
<PAGE> 19
right to receive the Call Price, without interest, and the Warrants called in
such Call Notice shall no longer be deemed to be outstanding.
The Company has reserved for issuance a number of shares of Common
Stock sufficient to provide for the exercise of the rights of purchase
represented by the Warrants. When delivered, such shares of Common Stock shall
be fully paid and non-assessable.
Warrantholders are not entitled, by virtue of being Warrantholders, to
receive dividends or to consent to or to receive notice as stockholders in
respect of any meeting of stockholders for the election of directors of the
Company or any other matter or to vote at any such meeting or to exercise any
rights whatsoever as stockholders of the Company.
Transfer Agent
The Transfer Agent for the Company's Common Stock is American Stock
Transfer & Trust Company, 40 Wall Street, New York, New York 10005.
LEGAL MATTERS
Certain legal matters relating to the legality of the Securities
offered hereby have been passed upon for the Company by St. John & Wayne, 245
Park Avenue, New York, New York 10167-0377.
EXPERTS
The consolidated financial statements and financial statement schedule
of the Company appearing in the Company's Annual Report (Form 10-K) for the
year ended April 29, 1995, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements and
financial statement schedule are incorporated herein by reference in reliance
upon such report given upon the authority of such firm as experts in accounting
and auditing.
17
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses of American Business
Computers Corporation in connection with the distribution of the securities
being registered. The Selling
Securityholders will not bear any of such expenses:
<TABLE>
<S> <C>
Registration Fee.....................................................$ 2,799.32
NASDAQ Share Listing Fee.............................................$ 3,500.00
Legal fees and expenses..............................................$25,000.00
Blue Sky Fees and Expenses...........................................$ 5,000.00
Accounting Fees and Expenses.........................................$ 7,500.00
Printing and Engraving Expenses......................................$ 1,000.00
Miscellaneous Expenses...............................................$ 1,000.00
TOTAL............................................................... $45,799.32
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 6.07.014(1) of the General Corporation Act of the State of
Florida (the "General Corporation Act") provides, in general that a corporation
shall have power to indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether formal or informal or whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the corporation. Such indemnity may be against expenses
(including attorneys' fees), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action,
suit or proceeding, if the indemnitee acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
corporation and with respect to any criminal action or proceeding, the
indemnitee must not have had reasonable cause to believe his conduct was
unlawful.
Section 6.07.014(2) of the General Corporation Act provides, in
general, that a corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation.
Section 607.014(12) of the General Corporation Act provides in general
that a corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the corporation against any liability asserted against him or incurred by him
in any capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against liability under the
provisions of the law.
II-1
<PAGE> 21
Section 607.014(13) of the General Corporation Act provides that if
any expenses or other amounts are paid by way of indemnification otherwise than
by court order or action by the shareholders or by an insurance carrier
pursuant to insurance maintained by the corporation, the corporation shall, not
later than the time of delivery to shareholders of written notice of the next
annual meeting of shareholders, unless such meeting is held within three months
from the date of such payment, and, in any event, within 15 months from the
date of such payment, deliver either personally or by mail to each shareholder
of record at the time entitled to vote for the election of directors a
statement specifying the persons paid, the amounts paid and the nature and
status at the time of such payment of the litigation or threatened litigation.
The Company's By-laws and Amended and Restated Certificate of
Incorporation provide that the Company will indemnify its officers, directors,
employees and agents to the fullest extent permitted by the General Corporation
Act.
Section 607.1645 of the General Corporation Act eliminates the
personal liability of a director to the corporation for monetary damages
arising from any statement, vote, decision or failure to act, regarding
corporate management or policy, by a director unless the director breached or
failed to perform his duties as director, constituting one of the following:
(i) a violation of the criminal law, (ii) any transaction from which the
director derived an improper personal benefit, (iii) unlawful payment of
dividends, unlawful purchase of its capital stock or unlawful distribution of
corporate assets in liquidation, (iv) conscious disregard for the best
interests of the corporation or willful misconduct during a proceeding by or in
the right of the corporation or in the right of a shareholder or (v) in other
types of proceedings, recklessness, or an act or omission in bad faith or with
malicious purpose or exhibiting wanton or willful disregard of human rights,
safety or property.
The Company's By-laws and Amended and Restated Certificate of
Incorporation provide that the Company will indemnify its officers, directors,
employees and agents to the fullest extent permitted by the General Corporation
Act.
Section 607.1645 of the General Corporation Act eliminates the
personal liability of a director to the corporation for monetary damages
arising from any statement, vote, decision or failure to act, regarding
corporate management or policy, by a director unless the director breached or
failed to perform his duties as director, constituting one of the following:
(i) a violation of the criminal law, (ii) any transaction from which the
director derived an improper personal benefit, (iii) unlawful payment of
dividends, unlawful purchase of its capital stock, or unlawful distribution of
corporate assets in liquidation, (iv) conscious disregard for the best
interests of the corporation or willful misconduct during a proceeding by or in
the right of the corporation or in the right of a shareholder, or (v) in other
types of proceedings, recklessness, or an act or omission in bad faith or with
malicious purpose or exhibiting wanton or willful disregard of human rights,
safety or property.
ITEM 16. EXHIBITS
5.1 Opinion of St. John & Wayne as to the legality of the
securities to be registered.(1)
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of St. John & Wayne.(1)
II-2
<PAGE> 22
(1)Previously filed as an Exhibit to Amendment No. 1 to the Company's
Registration Statement on Form S-2, No. 33-89596 as filed with the
Commission on March 31, 1995.
ITEM 17. UNDERTAKINGS
The 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 fact or events
arising after the effective date of the registration
statement (or 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 1(i) and (ii) do not apply
if the registration statement is on Form S-3, or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by 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 the 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.
(4) The undersigned Registrant hereby undertakes that, for the
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 Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities 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.
II-3
<PAGE> 23
(5) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the Prospectus, to each person to whom the Prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the Prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the Prospectus, to deliver or
cause to be delivered to each person to whom the Prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the Prospectus to provide such interim financial information.
(6) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the Form of Prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a Form of Prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this Registration Statement as of the time it was declared effective.
(7) 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 officer, director 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.
II-4
<PAGE> 24
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 of filing on Form S-2 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Akron, State of Ohio, on July 3, 1996.
AMERICAN BUSINESS COMPUTER CORPORATION
/s/ ROBERT A. CUTTING
By: ----------------------------------------
Robert A. Cutting, President and Director
(principal executive officer)
/s/ GARY T. SALHANY
By: -----------------------------------------
Gary T. Salhany, Treasurer
(principal financial and accounting officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Robert A. Cutting and Gary T. Salhany true and lawful attorneys-in-fact and
agents each acting alone, with full powers of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, each acting alone,
full powers and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on July 3, 1996.
SIGNATURE TITLE
President, Director
/s/ ROBERT A. CUTTING
- -----------------------
Robert A. Cutting
Chairman of the Board of Directors
/s/ HERBERT M. PEARLMAN
- -----------------------
Herbert M. Pearlman
Director
/s/ HERBERT L. LUXENBURG
- ------------------------
Herbert L. Luxenburg
II-5
<PAGE> 25
Director
/s/ C. RAND MICHAELS
- ---------------------
C. Rand Michaels
Director
/s/ JHON E. STIEGLITZ
- ---------------------
John E. Stieglitz
II-6
<PAGE> 26
INDEX TO EXHIBITS
NUMBER DESCRIPTION SEQUENTIAL PAGE NO.
5.1 Opinion of St. John & Wayne(1)
23.1 Consent of Ernst & Young LLP, Independent
Auditors
23.2 Consent of St. John & Wayne(1)
24.1 Power of Attorney(2)
(1) Previously filed as an Exhibit to Amendment No. 1 to the Company's
Registration Statement on Form S-2, No. 33- 89596 as filed with the Commission
on March 31, 1995.
(2)Previously filed as an Exhibit to the Company's Registration Statement
on Form S-2, No. 33-89596 as filed with the Commission on February 17, 1995.
II-7
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in
Post-Effective Amendment No. 1 to the Registration Statement (Form S-2 No.
33-89596) and related Prospectus of ABC Dispensing Technologies, Inc. (f/k/a)
American Business Computers Corporation for the registration of 320,000 shares
of its common stock and redeemable warrant to purchase 786,000 shares of its
common stock and to the incorporation by reference therein of our report dated
July 11, 1995, with respect to the consolidated financial statements and
schedule of ABC Dispensing Technologies, Inc. included in its Annual Report
(Form 10-K) for the year ended April 29, 1995, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Akron, Ohio
July 3, 1996
