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As Filed with the Securities and Exchange Commission on October 28, 1997
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ABC DISPENSING TECHNOLOGIES, INC.
(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)
CHARLES M. STIMAC, JR.
President
451 Kennedy Road
Akron, Ohio 44305
(330) 733-2841
(Name, 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, L.L.C.
Two Penn Plaza East
Newark, New Jersey 07105-2249
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO
TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
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 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 462(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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of each Class of Securities to be Registered Registered Per Share Offering Price Fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share, 257,500(1)(5) $ 2.00(2) $ 515,000.00 $ 156.06
Underlying Common Stock Purchase Warrants and Options 310,000(1)(5) $ 3.00(2) $ 930,000.00 $ 281.81
30,000(1)(5) $ 3.375(2) $ 101,250.00 $ 30.68
710,000(1)(5) $ 3.50(2) $ 2,485,000.00 $ 753.03
58,910(1)(5) $ 2.037(2) $ 119,999.67 $ 36.36
30,000(1)(5) $ 2.25(2) $ 67,500.00 $ 20.45
50,000(1)(5) $ 1.375(2) $ 68,750.00 $ 20.83
3,562,500(1)(5) $ 1.25(2) $ 4,453,125.00 $ 1,349.43
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Common Stock, par value $.01 per share, issuable in 636,750(3)(5) $ 1.203(6) $ 766,089.84(6) $ 232.14
payment of dividends on Preferred Stock
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Common Stock, par value $.01 per share, issuable upon 3,537,500(4)(5) $ 1.00(2) $ 3,537,500.00 $ 1,071.97
conversion of Preferred Stock
- ----------------------------------------------------------------------------------------------------------------------------------
TOTAL 9,183,160 -- $13,044,214.51 $ 3952.76
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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.
Information contained herein is subject to completion or amendment.
A Registration Statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers be accepted prior to the time the Registration Statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
- ----------
(1) Issuable upon exercise of the Warrants (as defined in the Prospectus).
(2) The offering price per share is calculated pursuant to Rule 457(g).
(3) Issuable in lieu of cash dividends payable on the Preferred Stock (as
defined in the Prospectus).
(4) Issuable upon conversion of the Preferred Stock (as defined in the
Prospectus).
(5) Pursuant to Rule 416, there are also registered hereby such additional
indeterminate number of shares of Common Stock as may be issuable by
reason of the anti-dilution provisions of such Warrants and Preferred
Stock.
(6) Estimated pursuant to Rule 457(c) solely for purposes of calculating
the amount of the registration fee, based upon the average of the high
and low prices reported on October 22, 1997 as reported on the NASDAQ
Small Cap Market.
<PAGE> 3
PROSPECTUS
ABC DISPENSING TECHNOLOGIES, INC.
9,183,160 Shares of Common Stock
The securities of ABC Dispensing Technologies, Inc. (the "Company"), to
which this Prospectus relates (the "Securities"), include the following:
5,008,910 shares of the Company's common stock, $.01 par value per share
("Common Stock") issuable by the Company (the "Warrant Shares") upon exercise of
certain common stock purchase warrants and options (collectively, the
"Warrants"), 3,537,500 shares of Common Stock (the "Conversion Shares") issuable
upon conversion of shares of the Company's issued and outstanding 9% Convertible
Cumulative Redeemable Preferred Stock, Series A ("Preferred Stock") and 636,750
shares of Common Stock issuable in payment of dividends on the Preferred Stock
(the "Dividend Shares").
The Securities being offered hereby by the Company are being offered to
permit the issuance of registered stock upon the exercise of the Warrants,
conversion of the Preferred Stock into Common Stock, and in payment of dividends
on the Preferred Stock. See "Plan of Distribution."
Additionally, this Prospectus has been prepared for use, with the prior
consent of the Company, by certain holders of the Warrants, who will acquire
Warrant Shares upon exercise of Warrants and who may wish to sell such shares in
transactions in which they may (because of their relationship to the Company) be
deemed to be underwriters within the meaning of the Act.
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 average of the closing bid and asked
price for the Common Stock as reported by NASDAQ on October 22, 1997 was 1
13/64.
Other than the proceeds equal to the exercise price of the Warrants
exercised, the Company will receive no cash proceeds from the distribution of
the Securities offered hereby.
This Prospectus also relates to such additional shares of Common Stock
which may be issuable pursuant to the anti-dilution provisions of the Warrants
and Preferred Stock, 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 DATE OF THE PROSPECTUS IS OCTOBER ___, 1997
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, the Company files reports, proxy and information
statements and other information with the Securities and Exchange Commission
(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
Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661; and 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of
such materials can be obtained from the Public Reference Section of the
Commission, in 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. In addition, such reports and other information may be electronically
accessed at the Commission's site on the World Wide Web located at
http://www.sec.gov.
The Company has filed a Registration Statement on Form S-3 (together
with all amendments thereto referred to herein as the "Registration Statement")
under the Act with the Commission, covering the shares of Common Stock 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.
--------------------------
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, as amended, for the
fiscal year ended April 26, 1997.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended July 26, 1997.
3. The Company's definitive Proxy Statement dated August 25, 1997
for its Annual Meeting of Shareholders to be held on October
13, 1997.
4. The Company's Current Reports on Form 8-K filed March 26, 1997
(approving the change of accountants), January 3, 1997
(announcing new products) and December 2, 1996 (failure to
meet listing requirements).
5. 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.
6. The information set forth under the heading "Description of
Common Stock" in the Company's registration statement on Form
8-A filed with the Commission under the Exchange Act on August
22, 1986.
7. All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15 of the Exchange Act prior to
the termination of this offering shall be deemed to be
incorporated by reference in this Prospectus and to be a part
of this Prospectus from the date of filing thereof.
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 modified or superseded, to constitute
part of the registration statement or this Prospectus for purposes of the Act.
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: John Hornbeck, Associate
Vice President of Finance, Administration and Operations (telephone (330)
733-2841).
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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 29 useful patents and
12 patents 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.
To date, the Company has developed 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 completed a thorough internal review of
operations, marketing and strategic planning. As a result, the Company has
refocused its resources and efforts on its paint dispensing and juice dispensing
product lines. On April 18, 1997 the Company terminated its exclusive agreement
(the "Sherwin-Williams Agreement") with The Sherwin-Williams Company
("Sherwin-Williams") pursuant to which the Company sold its paint-dispensing
systems exclusively to Sherwin-Williams. The termination of the Sherwin-Williams
Agreement allowed the Company to pursue other customers in the paint industry.
On February 12, 1997, the Company received a multi-million dollar order for 300
of its new, self-calibrating universal paint-tint dispensing systems from The
Home Depot, Inc. ("Home Depot"). Delivery of the Company's systems to Home Depot
commenced in May 1997 and is expected to be completed during the current fiscal
year. The Company anticipates, though there can be no assurances, that Home
Depot's order constitutes the initial phase of a system-wide roll-out to Home
Depot's entire 500-plus store network, with one to three units of the Company's
tinting system expected to be installed in each store.
On June 25, 1997 the Company announced the formation of "Virtual
Squeeze"(TM), a joint venture with Damon Industries Inc., a Nevada based juice
manufacturer and distributor. Virtual Squeeze(TM) has targeted the $3 billion
institutional juice market with a self-contained, refrigerated dispenser
designed to use shelf stable, bag in the box concentrates. Current plans provide
for the free installation and service of the dispensing equipment provided that
only Virtual Squeeze(TM) products are used. The Virtual Squeeze(TM) equipment is
the only known juice dispenser specifically designed to use shelf stable
products.
During fiscal 1997 the Company discontinued marketing efforts with
respect to its Classic(TM) line of soft drink dispensers, due to narrow margins
and resistance from major soft drink suppliers to support the equipment. The
Company is exploring opportunities to capitalize on its Classic(TM) product
line, including potential strategic partnerships, technology licenses and/or
sale of the Classic(TM) product line.
The Company is a corporation organized under the laws of Florida in
1980. In May 1996, the Company changed its name from American Business Computers
Corporation to ABC Dispensing
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Technologies, Inc. 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 $1,324,000 on revenues of
$5,312,000 for the fiscal year ended April 27, 1996, as compared to a net loss
of $2,681,000 on revenues of $3,359,000 for the fiscal year ended April 29,
1995. The Company reported a net loss of $2,968,000 on revenues of $3,073,000
for the fiscal year ended April 26, 1997, as compared to a net loss of
$1,324,000 on revenues of $5,312,000 for the fiscal year ended April 27, 1996.
For the three months ended July 26, 1997, the Company reported a net loss of
$345,000 on revenues of $1,336,000 as compared to a net loss of $769,000 on
revenues of $1,178,000 for the comparable period in the previous fiscal year. As
a result, the Company requires capital resources to fund operating losses as
well as research and development expenditures and litigation related expenses.
It is anticipated that the expenditures associated with 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.
2. UNCERTAINLY AS TO CONTINUATION AS A GOING CONCERN. The Company's
history of operating losses and limited capital resources have caused the
Company's independent auditors to include in their reports for the fiscal years
ended April 26, 1997 and April 27, 1996 a paragraph expressing substantial doubt
regarding the Company's ability to continue as a going concern.
3. 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 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.
4. DEPENDENCE ON MAJOR CUSTOMER. During the fiscal years ended April
26, 1997 and April 27, 1996, one customer, Sherwin-Williams, accounted for 54%
and 72%, respectively, of the Company's revenues. The Company currently has no
orders from Sherwin-Williams, and the Company expects future revenues from sales
to Sherwin-Williams to decrease substantially. The loss of revenues from
Sherwin-Williams will have a material adverse effect on the Company's revenues
in the short term, and there can be no assurance that the Company will replace
the revenues from such loss.
5. COMPETITION. The controlled measurement and dispensing equipment
industry is highly competitive and dominated by several large companies with
substantially greater financial resources and
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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.
6. 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.
7. 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. Assuming the exercise of the
Warrants, conversion of the Preferred Stock and payment of Dividend Shares as
dividends on the Preferred Stock described in this Prospectus, 9,183,160 shares
of Common Stock may be offered for sale in the public market. The Company has
registered with the Commission an aggregate of approximately 600,000 shares of
Common Stock in several registration statements filed by the Company for
continuous or delayed sales. In addition, the Company has approximately an
aggregate of 291,667 shares issued and outstanding which are "restricted" in
accordance with Rule 144 of the Regulations promulgated under the Securities Act
of 1933. The Company cannot predict the extent to which the market sales of the
Common Stock or the availability of such Common Stock will have an adverse
effect on the market price for such stock.
USE OF PROCEEDS
The Company will only receive proceeds from the exercise of the
Warrants and the issuance of the Warrant Shares. The 5,008,910 Warrant Shares
are being registered to provide the holders of the Warrants with freely
tradeable Common Stock upon exercise. If all the Warrants are exercised, the
Company will receive aggregate gross proceeds of approximately $8,741,000. No
assurance can be given, however, that all or any portion of the Warrants will be
exercised. If any of the Warrants are exercised, the Company intends to use the
proceeds for general corporate purposes.
PLAN OF DISTRIBUTION
This Prospectus relates to the offer and sale of 5,008,910 shares of
Common Stock by the Company upon the exercise of the Warrants 636,750 shares of
Common Stock issuable in payment of dividends on the Company's Preferred Stock
and 3,537,500 shares of Common Stock by the Company upon conversion of shares of
the Preferred Stock.
The shares of Common Stock issuable upon exercise of the Warrants, in
payment of dividends and upon conversion of the Preferred Stock will be issued
and distributed by the Company pursuant to the terms and conditions of the
Warrants and Preferred Stock. Such Common Stock is being registered pursuant to
the Act and offered by the Company hereby to permit the issuance by the Company
of registered stock upon the exercise of the Warrants in payment of dividends
and upon conversion of the Preferred Stock in accordance with their respective
terms. Additional shares of Common Stock may be issuable pursuant to the
anti-dilution provisions of the Warrants and Preferred Stock, which shares are
also being registered hereby pursuant to Rule 416 promulgated under the Act. If
all of the Warrants registered hereby are exercised, the Company will receive
aggregate cash proceeds of approximately $8,740,624.67. See "Use of Proceeds."
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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 Warrant Shares and Conversion Shares
obtained by persons pursuant to the exercise of the Warrants or Conversion of
Shares of Preferred Stock, which persons may, by virtue of their relationship to
the Company, be deemed underwriters under the Act.
The Warrants consist of eight different classes of securities described
as follows:
(1) common stock purchase warrants issued in a private placement during
the summer of 1995 covering an aggregate of 257,500 shares of Common Stock with
an exercise price of $2.00 per share and an expiration date of June 1, 1998;
(2) common stock purchase options issued to officers of the Company in
August 1995 covering an aggregate of 310,000 shares of Common Stock with an
exercise price of $3.00 per share and an expiration date of April, 2000;
(3) common stock purchase options issued as compensation to certain
officers of the Company in May 1995 covering an aggregate of 30,000 shares of
Common Stock with an exercise price of $3.375 per share and an expiration date
of May, 2000.
(4) common stock purchase warrants issued as part of the settlement of
a litigation in September and November 1995 covering an aggregate of 710,000
shares of Common Stock with an exercise price of $3.50 per share and an
expiration date of November, 2000;
(5) common stock purchase rights issued to a lender in consideration of
the extension of credit to the Company on January 1996 covering 58,910 shares of
Common Stock with an exercise price of $2.037 per share and an expiration date
of January, 2000;
(6) common stock purchase options issued as compensation to an officer
of the Company in December 1995 covering 30,000 shares of Common Stock with an
exercise price of $2.25 per share and an expiration date of December, 2000;
(7) common stock purchase warrants issued as compensation to an officer
of the Company in July 1996 covering 50,000 shares of Common Stock with an
exercise price of $1.375 per share and an expiration date of July 2006; and
(8) common stock purchase warrants which are eligible for issuance upon
conversion of the Company's Preferred Stock at a price of $1.25 per share and an
expiration date five years from their date of issuance.
The Preferred Stock issued in connection with a private placement in
December 1996 and January and February 1997 consists of 283 shares of 9%
Convertible Cumulative Redeemable Preferred Stock, Series A, each convertible
into shares of Common Stock at a price of $1.00 per share and Common Stock
Purchase Warrants to purchase an equal number of shares of Common Stock as
received upon conversion, exercisable at a price of $1.25 per share. Each share
of Preferred Stock is entitled to receive dividends semi-annually and may be
redeemed by the Company at any time upon thirty (30) days' written notice.
In order to comply with certain states' securities laws, if applicable,
the Common Stock issuable upon exercise of the Warrants will be sold in such
jurisdictions only through registered or licensed
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brokers or dealers. In certain states, the Common Stock issuable upon exercise
of the Warrants may not be sold unless such Common Stock has been registered or
qualified for sale in such state, or unless an exemption from registration or
qualification is available and is obtained.
Transfer Agent
The Transfer Agent for the 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,
L.L.C., Two Penn Plaza East, Newark, New Jersey 07105-2249.
EXPERTS
The consolidated financial statements and financial statement schedule
of the Company appearing in the Company's Annual Report (Form 10-K), as amended,
as of and for the year ended April 26, 1997, have been audited by Grant Thornton
LLP, independent auditors, as set forth in their report thereon for the fiscal
year ended April 26, 1997 (which contains an explanatory paragraph with respect
to a going concern uncertainty mentioned in Note 3 of the consolidated financial
statements for the fiscal year ended April 26, 1997) included therein and
incorporated herein by reference. Such consolidated financial statements and
financial statement schedule are incorporated herein by reference in reliance
upon such reports given upon the authority of such firm as experts in accounting
and auditing.
The consolidated financial statements and financial statement schedule
of the Company as of April 27, 1996 and for the two years then ended appearing
in the Company's Annual Report (Form 10-K), as amended, for the fiscal year
ended April 26, 1997, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon (which contains an explanatory
paragraph with respect to a going concern uncertainty mentioned in note 3 to the
consolidated financial statements) 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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses of ABC Dispensing
Technologies, Inc. in connection with the distribution of the securities being
registered:
<TABLE>
<S> <C>
Registration Fee................................................. $ 3,952.76
Legal Fees and Expenses.......................................... $ 15,000.00
Accounting Fees and Expenses..................................... $ 7,500.00
Miscellaneous Expenses........................................... $ 500.00
TOTAL............................................................ $ 26,952.76
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Florida corporation. The following summary is
qualified in its entirety by reference to the complete text of the Florida
Business Corporation Act (the "FBCA"), the Company's Articles of Incorporation,
and the Company's Bylaws.
Section 607.0850(1) of the FBCA, provides, in general, that a
corporation may indemnify any of its directors and officers against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding (including any appeal thereof) (i) if such person acted in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, and (ii) with respect to any
criminal action or proceeding, he or she had no reasonable cause to believe his
or her conduct was unlawful.
Section 607.0850(2), however, provides that in actions brought by or in
the right of the corporation, no indemnification shall be made in respect of any
claim, issue or matter as to which the director or officer shall have been
adjudged to be liable unless, and only to the extent that, the court in which
such proceeding was brought, or any other court of competent jurisdiction, shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
ITEM 16. EXHIBITS
5.1 Opinion of St. John & Wayne, L.L.C. as to the legality of the
securities to be registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Grant Thornton LLP, Independent Auditors
23.3 Consent of St. John & Wayne, L.L.C. (included in Exhibit 5.1).
II-1
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24.1 Power of Attorney (included on the signature page hereof).
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; and
(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 1(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 with or furnished to the 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 effective 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) 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.
(5) To supplement the prospectus, after the expiration of the
subscription period, to set forth the results of the subscription offer, and the
terms of any subsequent reoffering thereof. If any public
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<PAGE> 13
offering is to be made on terms differing from those set forth on the cover page
of the Prospectus, a post-effective amendment will be filed to set forth the
terms of such offering.
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant, or otherwise, the Securities and Exchange Commission
has informed the registrant that such indemnification is against public policy
as expressed in the Act and is therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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<PAGE> 14
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-3 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 October 28, 1997.
ABC DISPENSING TECHNOLOGIES, INC.
By: /s/ Charles M. Stimac, Jr.
----------------------------------------------------
Charles M. Stimac, Jr., President and Director
(principal executive officer and principal financial
and accounting officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Charles M. Stimac, Jr. and John Hornbeck 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 October 28, 1997.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Charles M. Stimac, Jr. President, Director
- --------------------------
Charles M. Stimac, Jr.
/s/ Herbert L. Luxenburg Director
- --------------------------
Herbert L. Luxenburg
/s/ C. Rand Michaels Director
- --------------------------
C. Rand Michaels
</TABLE>
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<PAGE> 15
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Number Description Sequential Page No.
- ------ ----------- -------------------
<S> <C> <C>
5.1 Opinion of St. John & Wayne, L.L.C.
23.1 Consent of Ernst & Young LLP, Independent
Auditors
23.2 Consent of Grant Thornton LLP, Independent
Auditors
23.3 Consent of St. John & Wayne, L.L.C.
(included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature
page hereof)
</TABLE>
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<PAGE> 1
EXHIBIT 5.1
[ST. JOHN & WAYNE LETTERHEAD]
October 27, 1997
ABC Dispensing Technologies, Inc.
451 Kennedy Road
Akron, Ohio 44305
Gentlemen:
We refer to the registration statement on Form S-3 (the "Registration
Statement") filed by ABC Dispensing Technologies, Inc., a Florida corporation
(the "Company"), with the Securities and Exchange Commission (the "Commission")
on the date hereof relating to the sale by the Company of 9,183,160 shares of
its common Stock, $.01 par value per share (the "Common Stock").
We have reviewed such documents and records as we have deemed necessary to
enable us to express an informed opinion on the matters covered hereby, and we
are of the opinion that:
The shares of Common Stock proposed to be sold by the Company will, when
sold pursuant to the Registration Statement and the resolutions of the Board of
Directors of the Company authorizing the same, be validly issued, fully paid
and non-assessable.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the prospectus which forms a part thereof. In giving this consent,
we do not hereby admit that we are within the category of persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Commission thereunder.
We are delivering this opinion to the Company, and no person other than
the Company may rely upon it.
Very truly yours,
/S/ ST. JOHN & WAYNE, L.L.C.
ST. JOHN & WAYNE, L.L.C.
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-00000) and related Prospectus of ABC
Dispensing Technologies, Inc. for the registration of 9,183,160 shares of its
common stock and to the incorporation by reference of our report dated August
8, 1996, which contains an explanatory paragraph with respect to a going
concern uncertainty, with respect to the consolidated financial statements and
schedule of ABC Dispensing Technologies, Inc. as of and for the two years ended
April 27, 1996 included in its Annual Report (Form 10-K), as amended, for the
fiscal year ended April 26, 1997, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Akron, Ohio
October 22, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF GRANT THORNTON LLP
We have issued our report dated July 11, 1997 accompanying the consolidated
financial statements and schedule of ABC Dispensing Technologies, Inc. and
subsidiaries included in the Annual Report on Form 10-K/A for the year ended
April 26, 1997, which are incorporated by reference in this Registration
Statement. We consent to the incorporation by reference in the Registration
Statement of the aforementioned report and to the use of our name as it appears
under the caption "Experts."
/s/ Grant Thornton LLP
GRANT THORNTON LLP
Cleveland, Ohio
October 24, 1997
