As filed with the Securities and Exchange Commission on May 8, 2000
Registration No
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under the Securities Act of 1933
At Comm Corporation
(Exact name of Registrant as specified in its charter)
Delaware 95-3824750
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
577 Airport Boulevard, Suite 700
Burlingame, California 94010
(650) 375-8188
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
William H. Welling
President and Chief Executive
Officer
At Comm Corporation
577 Airport Boulevard, Suite 700
Burlingame, California 94010
(650) 375-8188
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Blair W. Stewart, Jr., Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(650) 493-9300
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, 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. [ ]
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed
Title of Each Class Amount Proposed Maximum Amount of
of Securities to to be Maximum Aggregate Registration
be Registered Registered Offering Price Offering Fee
Per Share(1) Price
-------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$0.01 par value, 1,020,000 of which
are issuable upon conversion of Series 1,020,000(2) $28.25 $28,815,000 $7,607
B Preferred Stock....................
====================================================================================================================================
<FN>
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457 promulgated under the Securities
Act of 1933.
(2) In the event of a stock split, stock dividend or similar transaction
involving our common stock, the number of shares of common stock
registered hereunder shall be automatically increased to cover the
additional shares that would be issued, in accordance with Rule 416(a)
promulgated under the Securities Act of 1933.
</FN>
</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 Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
PROSPECTUS
1,020,000 Shares of Common Stock
($0.01 Par Value)
At Comm Corporation
577 Airport Boulevard, Suite 700
Burlingame, California 94010
(650) 375-8188
The shareholders of At Comm Corporation, (formerly Xiox Corporation),
listed on page 9 are selling up to 1,020,000 shares of common stock under this
prospectus. We will not receive any part of the proceeds from this offering.
Our common stock is quoted on the Nasdaq SmallCap Market and is traded
under the symbol "ATCM." On May 3, 2000, the average of the high and low sale
prices of one share of our stock on the Nasdaq SmallCap Market was $28.25.
These securities involve a high degree of risk. See "Risk Factors"
beginning on page 4.
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 securities commission passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is May 8, 2000
<PAGE>
About At Comm Corporation ("At Comm" or "@Comm")
(formerly Xiox Corporation)
At Comm Corporation was originally incorporated in California in
September 1982, subsequently incorporated in Delaware in April 1987, and became
a publicly held company in February 1986. Our stock is traded under the symbol
"ATCM" on the NASDAQ exchange.
We design, manufacture, and distribute a wide range of telemanagement
systems and solutions for the small and medium sized business and hospitality
markets. We design, develop, manufacture and sell software and hardware systems
under our Xiox Telemanagement Systems brand that assist companies in managing
their telecommunications expenses. These software and hardware solutions can
operate on personal computers, local area networks and Xiox hardware. Our
systems are designed to efficiently provide information to facilitate telephone
expense control; client, department or project billback; and fraud control
prevention. These systems can meet the simple needs of a 25-person office or the
complex needs of a multi-site Fortune 500 corporation.
Since our incorporation, our Xiox Telemanagement Systems product line
has expanded from a single software system to a full range of telecommunication
systems, each of which has been designed to address the needs of small or large
businesses in many different industries. In addition to our software and
hardware-based systems, we also provide call costing rate tables and system
enhancements to end users under subscription arrangements.
We market our Xiox telemanagement systems through a direct sales force,
dealers, subsidiaries of regional bell operating companies and original
equipment manufacturers. Together with our dealers we have sold and installed
over 30,000 systems.
In May 2000, we announced the introduction of our Town Square
Communications Systems product line. This new product line is designed to
provide integrated voice, data and Internet access to small and medium sized
businesses in a cost effective manner. The new product line will combine
telephone, data, and Internet connections in a single system, providing private
telephone exchange, voice mail, automatic attendant, local area network control
and network security functions. We believe that small and medium sized business
customers will benefit from our new product line through telecommunications cost
savings and the ease of installation and use of the new products.
We will market our Town Square Communication Systems through dealers
and subsidiaries of regional bell operating companies.
We have secured trademark protection for our service marks under our Fort
Knox(R) Family of products, including Fort Knox(R), Hacker Tracker(R), Xiox
Hacker Tracker(R), Hacker Preventer(R), and Hacker Deadbolt(R). We also have
trademark protection for Prophet Writer(R), Summa Pro(R), Summa Suite(R), Summa
Voice(R), and our window and curtain graphic logo. XioxTM is also our trademark.
We have pending and in good order before the United States Patent and Trademark
Office applications for registration for the following marks: Paix, Intelligent
Buffer, Appliance, Appliance One, Appliance I, Appliance II, Appliance III, Town
Square, Town Square and design, @Comm and design. We have pending and in good
order regional applications for trademark registration in Belgium, Netherlands,
and Luxembourg for the following marks: Town Square, Town Square + device,
@Comm, and ATCOMM. We have pending and in good order application for European
registration of the following marks: @Comm and Town Square + device.
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<PAGE>
Our address and telephone number are: At Comm Corporation, 577 Airport
Boulevard, Suite 700, Burlingame, California 94010, (650) 375-8188.
The Offering
This prospectus relates to the sale of up to 1,020,000 shares of our
common stock by the selling shareholders named on page 9 below.
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<PAGE>
FORWARD LOOKING STATEMENTS
This Prospectus, including, but not limited to the section below
discussing risk factors, as well as the information incorporated by reference
herein, contains forward-looking statements within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act. Actual results could
differ materially from those projected in the forward-looking statements as a
result of many factors, including the risk factors set forth below.
You can identify such statements by noting the use of forward-looking
terms such as "believes," "expects," "plans," "estimates" and other similar
words. Certain risks, uncertainties or assumptions that are difficult to predict
may affect such statements. The following risk factors and other cautionary
statements could cause our actual operating results to differ materially from
those expressed in any forward-looking statement. We caution you to keep in mind
the following risk factors and other cautionary statements and to refrain from
placing undue reliance on any forward-looking statements, which speak only as of
the date of this document.
Reference is made in particular to the forward looking statements set
forth under "Management's Discussion and Analysis of Financial Condition and
Results of Operations" in the Annual Report on Form 10-KSB for the fiscal year
ending December 31, 1999, and the quarterly reports on Forms 10-QSB and 10-QSB/A
for the quarters ending March 31, 1999, June 30, 1999, and September 30, 1999,
as well as all other documents filed after the date hereof by At Comm, all of
which are incorporated herein by reference. In connection with the
forward-looking statements which appear or are incorporated by reference herein,
prospective purchasers of the common stock offered hereby should carefully
consider both the factors set forth below under "Risk Factors" and the risk
factors described in the documents incorporated by reference.
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<PAGE>
RISK FACTORS
Before you invest in our common stock, you should be aware an
investment in our common stock involves a high degree of risk, and that there
are various risks, including those described below. You should consider
carefully these risk factors, and the other information included in this
prospectus before you decide to purchase shares of our common stock.
Differing sales cycles may cause our operating revenues to fluctuate, which may
lower our stock price.
Our quarterly revenues are likely to fluctuate significantly in the
future due to a number of factors that affect telecommunications management
companies, many of which are outside our control. Factors that could affect our
revenue include:
o variations in the timing of orders and shipments of our products;
o variations in the size of the orders for our products;
o new product introductions by our competitors;
o delays in introducing new products.
Our stock price may be volatile and you may not be able to sell the shares at or
above the price you paid to purchase them.
The trading price of our common stock may be highly volatile and could
fluctuate in response to a variety of factors that affect telecommunications
management companies, including the following:
o actual or anticipated variations in quarterly operating results;
o announcements of technological innovations;
o new products or services offered by us or by our competitors;
o additions or departures of key personnel;
o changes in financial estimates by securities analysts;
o conditions or trends in the telecommunications industry;
o changes in the economic performance and/or market valuations of the
telecommunications industry;
o changes in the economic performance and/or market valuations of other
companies in the telecommunications industry;
o volatility generally associated with technology stocks; and
o other broader market trends unrelated to our operating performance.
In addition, our stock is commonly described as "thinly traded stock"
because our average daily trading volume (approximately 3,000 shares) is very
low in comparison to other publicly traded companies. The price of a thinly
traded stock like ours may fluctuate sharply whenever the volume of trades
exceeds the average volume. The dollar amount of the trades that would trigger
those fluctuations is low in comparison to the dollar amount that would trigger
similar fluctuations in the stock price of companies with a higher average
trading volume.
If we do not keep pace with rapid technological change, we may not be able to
produce new products and remain competitive.
The software industry is characterized by rapid technological change as
well as changes in customer requirements and preferences. In order to remain
competitive in this industry, we must quickly respond to such changes, including
the enhancement and upgrading of existing products and the introduction of new
products. We believe that our future results will depend largely upon our
ability to offer products that compete favorably with respect to price,
reliability, performance, range of useful features, continuing product
enhancements, reputation and training.
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<PAGE>
We cannot assure you that a market for our Town Square Communication System
product line will develop.
Although we believe that our Town Square family of products and
services, which combine voice, data, and Internet communications services, will
provide our small and medium enterprise and branch office customers with a
cost-effective, adaptable solution to their telecommunications needs, we cannot
assure you that a market for our equipment and services will develop. Among the
factors which may impede market acceptance of our equipment and services are:
o pricing competition from our competitors;
o quality and reliability of our Town Square hardware and software;
o possible advances in technology by our competitors; and
o consumer awareness of our Town Square Communication System product line
as an acceptable, low-cost alternative to traditional voice and data
network systems.
Most of our competitors have more resources than we do, which may harm our
ability to compete effectively with them.
Most of our competitors, as well as many potential competitors, have
substantially greater financial, marketing and technology resources than we do.
Telco Research, ISI-Infortext and Nortel Networks Corporation are our major
competitors in our Xiox Telemanagement Systems product line. Based on industry
sources, we believe that both Peregrine Telco and ISI-Infortext have revenues
that are at least twice as large as our revenues. Nortel Networks Corporation, a
public company, reported 1999 revenues of approximately $21 billion. Cisco
Systems, 3Com Corporation, Lucent Technologies and Nortel Networks Corporation
are our major competitors in our Town Square Communications Systems product
line. All four are public companies with reported 1999 revenues of approximately
$12 billion, $6 billion, $38 billion, and $21 billion respectively. In each
case, we believe our competitors have marketing and technological resources
commensurate with their revenues. We cannot be certain that we will be able to
compete successfully against either current or potential competitors or that
competition will not have a material adverse effect on our business,
consolidated results of operations and financial condition.
If we lose the business of our largest customer, our revenues may decrease and
our business may suffer.
One of our customers accounted for 12% of our revenue during 1999. The
loss or serious reduction in business from this customer could have a material
adverse effect on our business, consolidated results of operations and financial
condition in future periods.
If we lose our ability to sell our products through our network of dealers, our
revenues may decrease and our business may suffer.
We sell our products primarily through our network of authorized
dealers. Like other companies that sell products through a network of authorized
dealers, our ability to effectively distribute our products depends in part upon
the financial and business condition of our distribution network, which is
outside of our control. The loss of or a significant reduction in business with
any one of our major dealers could have a material adverse effect on our
business, consolidated results of operations and financial condition in future
periods.
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<PAGE>
We may not be able to expand our sales and distribution channels, which would
harm our ability to generate revenue
We believe that our future success is dependent upon our ability to
continue to expand our sales force and establish successful relationships with a
variety of international and domestic carriers, local competitive access
carriers, data and voice communication VARs, and selected PC manufacturers. If
we are not able to increase our direct sales staff and channel distribution
partners, we will not be able expand our business. We cannot be certain that we
will be able to reach agreement with additional channel distribution partners on
a timely basis or at all, or that these channel distribution partners will
devote adequate resources to marketing, selling and supporting our products. Our
inability to generate revenue from our sales offices and channel distribution
partners may harm our business, financial condition and results of operations.
If we do not increase our sales, our revenues may decrease and our business may
suffer.
Our future success, like the success of other telecommunications
management companies, will depend on deriving a substantial portion of our
revenues from sales of call accounting products to new customers as well as
updates and rate table renewals to existing customers. As a result, any factor
adversely affecting these sales, including market acceptance, product
performance and reliability, reputation, price competition and competing
products, as well as general economic and market conditions, could have a
material adverse effect on our business, consolidated results of operations and
financial condition.
Our future ability to generate sales may depend on the interoperability of our
equipment with those of other vendors.
Our open, standards-based Town Square system is designed to interface
with support applications and devices from third party vendor in order to allow
our customers to take advantage of newer technology and support additional users
without the need to replace the entire system. If third party applications and
devices are not interoperable with our Town Square system, our customers may
seek other communications network solutions that can provide product
interoperability. This could seriously harm our business, financial condition
and prospects.
If our software products contain errors or defects, our revenues may decrease
and our business may suffer.
The software products we offer, like many software products, are
internally complex and, despite extensive testing and quality control, may
contain errors or defects ("bugs"), especially when first introduced. Defects or
errors could result in corrective releases to our software products, damage to
our reputation, loss of revenues, an increase in product returns, claims for
damages, or lack of market acceptance of our products, any of which could have a
material and adverse effect on our business, consolidated results of operations
and financial condition.
If we encounter delays or difficulties in developing our products, our revenues
may decrease and our business may suffer.
Delays or difficulties in the execution of product development may
occur within any telecommunications management company, including At Comm. These
delays or difficulties may result in the cancellation of planned development
projects and could have a material and adverse effect on our business,
consolidated results of operations and financial condition.
6
<PAGE>
If we do not receive additional funding for our new product line, our business
may be adversely affected.
In 1997, we began a significant development effort in a new product
line addressing the combined telephony and data markets. Although we received
since 1997 approximately $32.9 million in funding for this development effort,
we will require additional funding before the new product line returns a profit.
The additional funding will be used for marketing, continued engineering, sales,
working capital, and to fund research and development activities. We cannot be
certain that we will be able to obtain the additional required funding, or that
the new product line will become profitable. Moreover, the introduction of the
new product line may result in a new group of competitors.
7
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
This prospectus does not include all the information that may be
important to you. You should read the entire prospectus carefully before you
decide to invest.
In addition, you should be aware that this prospectus constitutes part
of a registration statement on Form S-3, together with all of its amendments and
exhibits. This prospectus does not contain all of the information set forth in
the registration statement, certain parts of which are omitted in accordance
with the rules and regulations of the SEC. For further information, please refer
to the registration statement, copies of which may be obtained from the Public
Reference Room of the SEC, 450 Fifth Street, NW, Washington, D.C. 20549, upon
payment of the fees prescribed by the SEC.
Statements contained in this prospectus about the contents of any
document filed as an exhibit to the registration statement, or incorporated by
reference in the registration statement, must be read in the context of the
registration statement and as qualified in all respects by that context.
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
from the SEC's web site at http://www.sec.gov.
Our common stock is quoted on the NASDAQ SmallCap Market. Reports and
other information concerning us may be inspected at the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to documents we file with the SEC. The information incorporated by
reference is considered to be part of this prospectus. Information that we file
later with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until the selling shareholders sell all of the
shares covered by this prospectus:
(1) our Forms 8-K filed on January 10, 2000 and March 7, 2000;
(2) our Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999;
(3) our Quarterly Reports on Forms 10-QSB and 10-QSB/A for the
quarters ended March 31, 1999,June 30, 1999, and September 30,
1999; and
(4) our Proxy Statement on Form 14A as filed on April 14, 2000.
This prospectus is part of a registration statement we filed with the SEC. You
may request a copy of the registration statement or any of the above filings, at
no cost, by writing or telephoning the Chief Financial Officer at the following
address:
At Comm Corporation
577 Airport Boulevard, Suite 700
Burlingame, California 94010
(650) 375-8188
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<PAGE>
SELLING SHAREHOLDERS
<TABLE>
The following table provides the names of the selling shareholders and
the number of shares being offered by each of them. After completion of this
offering, assuming all the shares offered hereby are sold, no selling
shareholder will hold any At Comm securities except as set forth in the
footnotes below.
<CAPTION>
Selling Shareholders No. of Shares Offered
------------------------------------------------------------------
<S> <C>
Capital Research and Management Company, on behalf of 230,000
SMALLCAP World Fund, Inc. Clipperbay & Co.
Private Equity Finance, Ltd. 100,000
Edmund Shea and Mary Shea real property trust TR UA 10/3/85 100,000
Flanders Language Valley Fund CVA 75,000
Ziff Asset Management, LP 75,000
Rennes Foundation
Dietrich, Baumgartner & Partners 62,500
Lagunitas Partners, LP 57,500
Bay Area Microcap Fund, LP 50,000(1)
Rodney Smith 50,000
Clarion Capital Corp. 25,000
Palantir Partners, LP 25,000
Palantir Investments, LDC 25,000
Compass Chicago Partners, LP 22,500
Compass Technology Partners, LP 22,500
Capital Research and Management Company on behalf of
Variable Insurance Global Small Capitalization World Fund Piping & Co. 20,000
Roy and Ruth Rogers Unit Trust UTD 9/28/89 10,000
Maletis Partners, LP 10,000
Gruber and McBaine International 10,000
The Rogers Family Trust UTD 1/21/81 10,000
Clarion Partners, LP 9,900
Fred B. Bialek 7,500
Jon and Linda Gruber 7,500
Compass Venture Partners, LP 5,000
Clarion Offshore Fund, Ltd. 3,850
The Maletis Trust UTD 12/13/90 3,000
The M&T Profit Sharing Trust dated 12/23/76 3,000
Compass Management Partners, LP 250
<FN>
- --------------
1 Bay Area Microcap Fund owns 321,664 shares of common stock in
addition to the shares offered hereby.
</FN>
</TABLE>
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<PAGE>
No selling shareholder has held any position, office or other material
relationship with us or any of our affiliates within the past three years,
except Philip Vermeulen, who is one of our directors and is the CEO and managing
director of Flanders Language Valley Management, NV ("FLV"). Mr. Vermeulen
disclaims beneficial ownership of the shares held by FLV except to the extent of
his proportionate ownership interest in FLV.
We sold 375,000 shares of Series B Preferred Stock on December 30,1999,
and 645,000 shares of Series B Preferred Stock on February 7, 2000 to certain of
the selling shareholders in private transactions. The shares of Series B
Preferred Stock are convertible into an equivalent number of shares of common
stock. Such shares of common stock, issuable upon conversion of the Series B
Preferred Stock are registered hereunder.
Each selling shareholder has represented to us that he, she, or it
purchased the securities described above for investment, with no present
intention of distribution. However, in recognition of the fact that investors,
even though purchasing the securities described above for investment, may wish
to be legally permitted to sell their securities when they deem appropriate, we
have filed with the Commission under the Securities Act the registration
statement with respect to the sale of the common stock covered hereby from time
to time in through public or private transactions, on or off the NASDAQ SmallCap
Market, at prevailing market prices or privately negotiated prices, through the
writing of options on the securities owned by the selling shareholders, or
through a combination of the foregoing. We have agreed to use commercially
reasonable efforts to prepare and file such amendments and supplements to the
registration statement as may be necessary to keep the registration statement
effective until February 7, 2002.
PLAN OF DISTRIBUTION
Any or all of the shares may be sold from time to time by each selling
shareholder, its pledges, donors, transferees, distributees or
successors-in-interest. Each selling shareholder may sell all or a portion of
the shares from time to time while the registration statement of which this
prospectus is a part remains effective. At Comm has agreed that it will use
commercially reasonable efforts to keep the registration statement effective
until February 7, 2002 (or a shorter period if all the shares have been sold or
disposed of prior to such time). The aggregate proceeds to a selling shareholder
from the sale of shares offered by it hereby will be the prices at which such
shares are sold, less any commissions.
Each selling shareholder may sell shares on the NASDAQ SmallCap Market,
in privately negotiated transactions or otherwise, at fixed prices that may be
changed, at market prices prevailing at time of sale, at prices related to such
market prices or at negotiated prices.
Shares may be sold by one or more of the following methods, without
limitation:
o block trades in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction,
o purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this prospectus,
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers,
o privately negotiated transactions, and
o a combination of any such methods of sale.
In effecting sales, brokers and dealers engaged by the selling
shareholder may arrange for other brokers or dealers to participate. Brokers or
dealers may receive commissions or discounts from the selling shareholder (or,
if any such broker-dealer acts as agent for the purchaser of such shares, from
such purchaser) in amounts to be negotiated which are not expected to exceed
those customary in the types of transactions involved. Broker-
10
<PAGE>
dealers may agree with the selling shareholder to sell a specified number of
shares at a stipulated price per share, and, to the extent such broker-dealer is
unable to do so acting as agent for the selling shareholder, to purchase as
principal any unsold shares at the price required to fulfill the broker-dealer
commitment to the selling shareholder. Broker-dealers who acquire shares as
principal may thereafter resell such shares from time to time in transactions
(which may involve block transactions and sales to and through other
broker-dealers, including transactions of the nature described above) in the
over-the-counter market or otherwise at prices and on terms then prevailing at
the time of sale, at prices then related to the then-current market price or in
negotiated transactions and, in connection with such resales, may pay to or
receive from the purchasers of such shares commissions as described above. Each
selling shareholder may also sell shares in accordance with Rule 144 under the
Securities Act, rather than pursuant to this prospectus.
In connection with distributions of shares or otherwise, a selling
shareholder may enter into hedging transactions with broker-dealers or other
financial institutions. In connection with such transactions, broker-dealers or
other financial institutions may engage in short sales of At Comm's common stock
in the course of hedging the positions they assume with the selling shareholder.
The selling shareholder may also sell At Comm's common stock short and deliver
shares to close out such short positions. The selling shareholder may also enter
into option or other transactions with broker-dealers or other financial
institutions which require the delivery to such broker-dealers or other
financial institutions of shares offered hereby, which shares such
broker-dealers or other financial institutions may resell pursuant to this
prospectus. The selling shareholder may also pledge shares to a broker-dealer or
other financial institution, and, upon default, such broker-dealer or other
financial institution may effect sales of the pledged shares pursuant to this
prospectus.
The selling shareholder and any brokers and dealers through whom sales
of the shares are made may be deemed to be "underwriters" within the meaning of
the Securities Act, and the commissions or discounts and other compensation paid
to such persons may be regarded as underwriters' compensation. At Comm will pay
all expenses of registration (including the fees and expenses of the selling
shareholder's counsel) incurred in connection with this offering, but the
selling shareholder will pay all underwriting discounts, brokerage commissions
and other similar expenses incurred by the selling shareholder. At Comm has
agreed to indemnify the selling shareholder against certain losses, claims,
damages and liabilities, including those arising under the Securities Act.
The selling shareholder may sell the shares at any price. Sales of the
shares at less than market prices may depress the market price of At Comm's
common stock. Moreover, generally, selling shareholders are not restricted as to
the number of shares which may be sold at any one time, and it is possible that
a significant number of shares could be sold at the same time.
LEGAL MATTERS
For the purposes of this offering, Wilson Sonsini Goodrich & Rosati,
Professional Corporation, Palo Alto, California, is giving its opinion on the
validity of the shares and certain legal matters pertaining to At Comm.
11
<PAGE>
COMMISSION POSITION ON INDEMNIFICATION
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents, and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article VI of our Certificate of Incorporation provides for the
indemnification of directors to the fullest extent permissible under Delaware
law.
Article VI of our Bylaws provides for the indemnification of officers,
directors and third parties acting on behalf of the corporation if such person
acted in good faith and in a manner reasonably believed to be in and not opposed
to the best interest of the corporation, and, with respect to any criminal
action or proceeding, the indemnified party had no reason to believe his or her
conduct was unlawful.
We have entered into indemnification agreements with our directors and
executive officers, in addition to indemnification provided for in our Bylaws,
and we intend to enter into indemnification agreements with any new directors
and executive officers in the future.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and persons controlling At
Comm pursuant to the foregoing provisions, or otherwise, we have been informed
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
EXPERTS
The consolidated financial statements of At Comm, (formerly Xiox
Corporation), as of December 31, 1999 and 1998, and for each of the years in the
two year period ended December 31, 1999, have been incorporated by reference
herein and in the registration statement in reliance upon the report of KPMG
LLP, independent certified public accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
12
<PAGE>
================================================================================
No dealer, salesperson or other person has been authorized in
connection with any offering made hereby to give any information or to make any
representations other than those contained in or incorporated by reference in
this Prospectus, and, if given or made, such information or representations must
not be relied upon as having been authorized. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any security
other than the securities offered hereby, nor does it constitute an offer to
sell or a solicitation of any offer to buy any of the securities offered hereby
to any person in any jurisdiction in which such offer or solicitation would be
unlawful or to any person to whom it is unlawful. Neither the delivery of this
Prospectus nor any offer or sale made hereunder shall, under any circumstances,
create any implication that there has been no change in the affairs of At Comm
or that the information contained herein is correct as of any time subsequent to
the date hereof.
TABLE OF CONTENTS
Page
Forward Looking Statements.....................................................3
Risk Factors...................................................................4
Where You Can Find More Information............................................8
Selling Shareholders ..........................................................9
Plan of Distribution......................................................... 10
Legal Matters.................................................................11
Experts.......................................................................12
At Comm Corporation
1,020,000 Shares of Common Stock
PROSPECTUS
May 8, 2000
II-1
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses in connection with
the sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimates
except the Securities and Exchange Commission registration fee and the NASDAQ
SmallCap Market listing fee.
Securities and Exchange Commission registration fee $ 7,607
Nasdaq SmallCap Market listing fee 7,500
Printing and engraving expenses 1,000
Legal fees and expenses 25,000
Accounting fees and expenses 10,000
Transfer agent and registrar fees and expenses 5,000
Miscellaneous 1,500
-------
Total $57,607
=======
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents, and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article VI of our Certificate of Incorporation provides for the
indemnification of directors to the fullest extent permissible under Delaware
law.
Article VI of our Bylaws provides for the indemnification of officers,
directors and third parties acting on behalf of the corporation if such person
acted in good faith and in a manner reasonably believed to be in and not opposed
to the best interest of the corporation, and, with respect to any criminal
action or proceeding, the indemnified party had no reason to believe his or her
conduct was unlawful.
We have entered into indemnification agreements with our directors and
executive officers, in addition to indemnification provided for in our Bylaws,
and intend to enter into indemnification agreements with any new directors and
executive officers in the future.
II-2
<PAGE>
Item 16. Exhibits
<TABLE>
<CAPTION>
Exhibit Description
Number
<S> <C>
3.1(1) Certificate of Incorporation as filed with the Secretary of State of the State of
Delaware.
3.2(1) Bylaws.
3.3(2) Certificate of Amendment of Incorporation dated May 26, 1998
3.4(2) Certificate of Designations, Preferences and Other Rights of the Series A Preferred
3.5(3) Certificate of Amendment of Incorporation dated May 26, 1999
3.6(4) Certificate of Designations, Preferences and Other Rights of the Series B Preferred
3.7 Certificate of Ownership and Merger Merging At Comm Corporation With and Into Xiox
Corporation
4.4(5) Form of Common Stock Certificate
4.8(6) Stock Purchase and Investor Rights Agreement, as amended, dated February 7, 2000 between
the Registrant and certain investors and the exhibits thereto
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of KPMG LLP, independent auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (Included in
Exhibit 5.1 hereto)
24.1 Power of Attorney (included on P. II-5)
- --------------------------------------------------------------------------------
(1) Incorporated by reference to the Registrant's Report on Form 10-K for
the year ended December 31, 1987.
(2) Incorporated by reference to the Registrant's Report on Form 8-K filed
September 24, 1998.
(3) Incorporated by reference to the Registrant's Report on Form 10-QSB-A
filed November 30, 1999.
(4) Incorporated by reference to the Registrant's Report on Form 8-K filed
January 10, 2000.
(5) Incorporated by reference to the Registrant's Registration Statement on
Form S-3/A filed February 24, 1999.
(6) Incorporated by reference to the Registrant's Report on Form 8-KA filed
March 7, 2000.
</TABLE>
II-3
<PAGE>
Item 17. Undertaking
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and persons controlling At
Comm pursuant to the foregoing provisions, or otherwise, we have been informed
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by At Comm of expenses incurred or paid by a director,
officer or controlling persons of At Comm 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, At Comm 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
Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
prospectus required by section 10(a)(3) of the Securities Act of 1933, reflect
any facts or events which represent a fundamental change in the information in
the registration statement, or any additional or changed material information
with respect to the plan of distribution not previously disclosed in the
registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, At Comm
Corporation certifies that it has reasonable grounds to believe that it meets
all requirements for 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 Burlingame, State of California, on this 8th day of
May, 2000.
At Comm Corporation
By: / / William H. Welling
----------------------------------
William H. Welling
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints William H. Welling, as his
attorney-in-fact, with full power of substitution, for him in any and all
capacities, to sign any and all amendments to this Registration Statement and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorney to any and
all amendments to said Registration Statement.
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<CAPTION>
Signature Title Date
<S> <C> <C>
/ / William H. Welling President and Chief Executive Officer and May 8, 2000
- --------------------------------- Director (Principal Executive Officer)
(William H. Welling)
/ / Melanie D. Johnson Chief Financial Officer May 8, 2000
- ---------------------------------
(Melanie D. Johnson)
/ / Mark A. Parrish, Jr. Director May 8, 2000
- ---------------------------------
(Mark A. Parrish, Jr.)
/ / Robert K. McAfee Director May 8, 2000
- ---------------------------------
(Robert K. McAfee)
/ / Bernard T. Marren Director May 8, 2000
- ---------------------------------
(Bernard T. Marren)
/ / Atam Lalchandani Director May 8, 2000
- ---------------------------------
(Atam Lalchandani)
/ / Philip Vermeulen Director May 8, 2000
- ---------------------------------
(Philip Vermeulen)
</TABLE>
II-5
<PAGE>
Exhibit Index
<TABLE>
<CAPTION>
Exhibit Description
Number
<S> <C>
3.1(1) Certificate of Incorporation as filed with the Secretary of State of the State of
Delaware.
3.2(1) Bylaws.
3.3(2) Certificate of Amendment of Incorporation dated May 26, 1998
3.4(2) Certificate of Designations, Preferences and Other Rights of the Series A Preferred
3.5(3) Certificate of Amendment of Incorporation dated May 26, 1999
3.6(4) Certificate of Designations, Preferences and Other Rights of the Series B Preferred
3.7 Certificate of Ownership and Merger Merging At Comm Corporation With and Into Xiox
Corporation
4.4(5) Form of Common Stock Certificate
4.8(6) Stock Purchase and Investor Rights Agreement, as amended, dated February 7, 2000 between
the Registrant and certain investors and the exhibits thereto
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of KPMG LLP, independent auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (Included in
Exhibit 5.1 hereto)
24.1 Power of Attorney (included on P. II-5)
- --------------------------------------------------------------------------------
(1) Incorporated by reference to the Registrant's Report on Form 10-K for
the year ended December 31, 1987.
(2) Incorporated by reference to the Registrant's Report on Form 8-K filed
September 24, 1998.
(3) Incorporated by reference to the Registrant's Report on Form 10-QSB-A
filed November 30, 1999.
(4) Incorporated by reference to the Registrant's Report on Form 8-K filed
January 10, 2000.
(5) Incorporated by reference to the Registrant's Registration Statement on
Form S-3/A filed February 24, 1999.
(6) Incorporated by reference to the Registrant's Report on Form 8-KA filed
March 7, 2000.
II-6
</TABLE>
Exhibit 3.7
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
AT COMM CORPORATION
WITH AND INTO
XIOX CORPORATION
(Pursuant to Section 253 of the General Corporation Law of Delaware)
XIOX CORPORATION, a Delaware corporation (the "Corporation"), does
hereby certify:
FIRST: That the Corporation is incorporated pursuant to the General
Corporation Law of the State of Delaware.
SECOND: That the Corporation owns all of the outstanding shares of the
capital stock of AT COMM CORPORATION, a Delaware corporation ("Merger Sub").
THIRD: That the Corporation, by the following resolutions of its Board
of Directors, duly adopted on the 31 day of March, 2000, determined to merge
Merger Sub with and into the Corporation on the conditions set forth in such
resolutions:
RESOLVED, that the Corporation merge Merger Sub with and into the
Corporation and assume all of said subsidiary's liabilities and obligations,
effective as of the close of business on March 31, 2000; and be it further
RESOLVED, that upon the effective date of the merger, the name of the
Corporation shall be changed to "At Comm Corporation"; and be it further
RESOLVED, that the President or Chief Financial Officer, and the
Secretary or any Assistant Secretary, of the Corporation be, and they hereby are
directed to make, execute and acknowledge a Certificate of Ownership and Merger
setting forth a copy of the resolutions to merge said Merger Sub with and into
the Corporation, to change the Corporation's name to At Comm Corporation and to
assume Merger Sub's liabilities and obligations and to file the same in the
Office of the Secretary of State of Delaware and a certified copy thereof in the
Office of the Recorder of Deeds of New Castle County; and be it further
RESOLVED, that the officers of the Corporation be, and they hereby are,
severally and not jointly, authorized and directed to provide all notices,
execute all documents, make all filings and take all actions as any of them may
deem to be necessary or appropriate in connection with the carrying out of the
purposes of the foregoing resolutions.
II-7
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by its authorized officers this 31 day of March, 2000.
XIOX CORPORATION
By: /s/ William H. Welling
-------------------------------------
William H. Welling
President and Chief Executive Officer
ATTEST:
By: /s/ Melanie D. Johnson
---------------------------
Melanie D. Johnson
Chief Financial Officer
II-8
EX-4.4
FORM OF COMMON STOCK CERTIFICATE
- --------------------------------------------------------------------------------
AT COMM CORPORATION LOGO
NUMBER SHARES
THIS CERTIFICATE IS TRANSFERABLE IN SEE THE REVERSE FOR A STATEMENT AS TO THE
NEW YORK, N.Y. RIGHTS, PREFERENCES, PRIVILEGES AND
AND RIDGEFIELD PARK, NJ RESTRICTIONS OF THE CORPORATION'S SHARES
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
- --------------------------------------------------------------------------------
This is to certify that CUSIP 00208K 10 5
is the owner of
- --------------------------------------------------------------------------------
FULLY-PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, WITH
PAR VALUE OF $.01, OF
AT COMM CORPORATION
Transferable on the share register of the Corporation, in person or by duly
authorized Attorney, upon surrender of this Certificate properly endorsed or
assigned.
This Certificate is not valid until countersigned by the transfer agent and
Registered by the registrar.
WITNESS the facsimile seal of Corporation and the facsimile signatures of its
duly authorized officers.
Dated:
/s/ /s/
CHIEF FINANCIAL OFFICER AND SECRETARY CHAIRMAN OF THE BOARD AND PRESIDENT
AT COMM CORPORATION SEAL
GOES HERE
- --------------------------------------------------------------------------------
II-9
<PAGE>
AT COMM CORPORATION
A full statement of the rights, preferences, privileges, and restrictions
granted to or imposed upon the respective classes of shares of the Corporation,
including the Common Stock, ownership of which is represented by this
certificate, and the Preferred Stock, and upon the respective holders thereof,
may be obtained by any shareholder upon request and without charge from the
Secretary of the Corporation, at the principal office of the Corporation.
The Board of Directors has the authority to fix the number of shares of any
series of Preferred Stock, to determine the designation of such series and to
determine or alter the rights, preferences, privileges and restrictions upon any
wholly unissued series of Preferred Stock.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIT MIN ACT--........Custodian
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right under Uniform Gifts to Minors
of survivorship and not as Act.................
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _______________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Shares of the Common Stock represented by the within certificate, and do hereby
irrevocably constitute and appoint
- --------------------------------------------------------------------------------
Attorney to transfer the said shares on the books of the within named
Corporation with full power of substitution in the premises.
Dated
--------------------------------------------------
--------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE
OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
II-10
EX-5.1
Opinion of Wilson Sonsini Goodrich & Rosati
Exhibit 5.1
May 8, 2000
At Comm Corporation
557 Airport Boulevard, Suite 700
Burlingame, CA 94010
Re: At Comm Corporation (the "Company") Registration Statement on
Amendment 3 to Form S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission (the "Registration Statement"), in
connection with the registration under the Securities Act of 1933, as amended,
of a shelf offering of (i) 1,020,000 shares of the Company's common stock, $.01
par value per share (the "Shares"). As your counsel, we have examined the
proceedings proposed to be taken in connection with the sale and issuance of the
above-referenced securities.
It is our opinion that the Shares are legally and validly issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and any amendment thereto.
Very truly yours,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
/ / Wilson Sonsini Goodrich & Rosati
II-11
EX-23.1
Consent of Independent Auditors
Exhibit 23.1
The Board of Directors
At Comm Corporation:
We consent to incorporation by reference in the Registration Statement filed on
or about May 8, 2000, on Form S-3 of At Comm Corporation of our report dated
February11, 2000, relating to the consolidated balance sheets of At Comm
Corporation and subsidiaries, (formerly Xiox Corporation and subsidiaries), as
of December 31, 1999 and 1998, and the related consolidated statements of
operations, stockholders' equity, and cash flows for each of the years in the
two-year period ended December 31, 1999, which report is incorporated by
reference in the December 31, 1999, Annual Report on Form 10-KSB of At Comm
Corporation, (Xiox Corporation), and to the reference of our firm under the
heading "Experts" in the Prospectus.
/ / KPMG LLP
--------------
KPMG LLP
Mountain View, California
May 8, 2000
II-12
