<PAGE> 1
As filed with the Securities and Exchange Commission on February 13, 1997
Registration No. 33-80627
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 6 to
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GILMAN & CIOCIA, INC.
----------------------------------------------
(Name of small business issuer in its charter)
Delaware 7291 11-2587324
- ---------------------- ---------------------- ----------------
(State or jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or Industrial Classifica- Identification
organization) tion Code Number) No.)
475 Northern Boulevard, Great Neck, NY 11021, (516) 482-4860
- --------------------------------------------------------------------------------
(Address and telephone number of principal executive offices)
475 Northern Boulevard, Great Neck, NY 11021
- --------------------------------------------------------------------------------
(Address or principal place of business or intended principal
place of business)
Mr. James Ciocia
----------------
Gilman & Ciocia, Inc.
475 Northern Boulevard
Great Neck, NY 11021, (516) 482-4860
---------------------------------------------------------
(Name, Address and telephone number of agent for service)
With copies to:
Seth A. Akabas, Esq.
Akabas & Cohen
488 Madison Avenue, 6th Floor
New York, NY 10022
(212) 308-8505
---------------------------
Approximate date of proposed sale to the public: As soon as practicable after
the effective date of this Registration Statement.
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. Indemnification of Officers and Directors
Article EIGHTH of the Corporation's Certificate of
Incorporation provides:
A director of this Corporation shall not be personally liable
to this Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to this Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived any improper personal
benefit. If the Delaware General Corporation Law is hereafter amended
to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of
this Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
Article NINTH of the Corporation's Certificate of
Incorporation provides:
This Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
complete action, suit or proceeding, whether civil, criminal,
administrative or investigative, or by or in the right of this
Corporation to procure judgment in its favor, by reason of the fact
that he is or was a director or officer, employee or agent of this
Corporation, or is or was serving at the request of this Corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of this Corporation, in accordance with and to the full
extent permitted by statute. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by this Corporation in
advance of the final disposition of such action, suit or proceeding as
authorized by the Board of Directors in the specific case upon receipt
of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount unless it shall ultimately be determined
that he is entitled to be indemnified by this Corporation as authorized
in this section.
II-1
<PAGE> 3
The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification
may be entitled under these Articles or any agreement or vote of
stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Article TENTH of the Company's By-Laws provides as follows:
Any person made a party to any action or proceeding (whether
or not by or in the right of the Corporation to procure a judgment in
its favor or by or in the right of any other corporation) by reason of
the fact that he, his testator or intestate, is or was a director,
officer or employee of the Corporation, or of any corporation which he
served as such at the request of the Corporation, shall be indemnified
by the Corporation against judgments, fines, amounts paid in settlement
and reasonable expenses, including attorneys' fees, actually and
necessarily incurred by him in connection with the defense of or as a
result of such action or proceeding, or in connection with any appeal
therein, to the full extent permitted under the laws of the State of
Delaware from time to time in effect. The Corporation shall have the
power to purchase and maintain insurance for the indemnification of
such directors, officers and employees to the full extent permitted
under the laws of the State of Delaware from time to time in effect.
Such right of indemnification shall not be deemed exclusive of any
other rights of indemnification to which such director, officer or
employee may be entitled.
ITEM 25. Other Expenses of Issuance and Distribution
The expenses payable by Registrant in connection with the issuance and
distribution of the securities being registered (other than underwriting
discounts and commissions, and non-accountable expenses of $-0-) are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Fees............ $ 4,148.70
NASDAQ Stock Market listing fees................... 1,000.00
Transfer/Warrant Agent's Fee and Expenses.......... 1,000.00
Accounting Fees and Expenses....................... 25,000.00
Blue Sky Fees and Expenses......................... 5,000.00
Printing Expenses ................................. 4,000.00
Legal Fees......................................... 29,000.00
Miscellaneous...................................... 851.30
TOTAL............................ $70,000.00
==========
</TABLE>
II-2
<PAGE> 4
ITEM 26. Recent Sales of Unregistered Securities
In July 1994, the Company granted additional options to purchase shares
of Common Stock at $2.50 per share to officers and directors as follows: James
Ciocia 18,850, Thomas Povinelli 18,850, Gary Besmer 11,310, and Kathryn Travis
14,170, and to the Company's former Chief Financial Officer, Ralph Esposito,
1,820.
In May 1995, the Company issued 203,428 shares of Common Stock in
connection with the Company's acquisition of Gilbert Financial Services, Inc.
and granted options to purchase 400,000 shares of Common Stock in connection
with an employment agreement with Mr. Steven Gilbert. After the end of the 1995
fiscal year, 60,000 options granted to Mr. Gilbert during such year were
rescinded pursuant to a preexisting incentive compensation agreement.
In June 1995, Judah Wernick, an employee of the underwriter in the
Company's initial public offering purchased all outstanding bridge loan Class A
Warrants, and upon exercise thereof, the Company issued 360,000 shares of Common
Stock for an aggregate purchase price of $748,800.
Also, in June 1995, the Company issued 64,286 shares of Common Stock in
partial consideration for the acquisition of assets used in the direct mail
advertising business.
In August 1995, the Company sold 70,161 shares of Common Stock to
employees and independent contractors of the Company at prices ranging from
$3.07 to $3.50, for an aggregate purchase price of approximately $232,000.
During the same period, the Company also issued 10,100 shares of Common Stock to
employees and others as performance bonuses.
Also in August 1995, the Company sold a total of 22,759 shares of its
Common Stock (which had been returned to the Company as a result of a default in
the payment of a subscription receivable) to an officer and a former officer of
the Company for an aggregate purchase price of $69,870.
In addition, in August 1995, the Company issued 25,713 restricted
shares of Common Stock for an aggregate purchase price of $89,995.50 to the
following individuals in the following amounts: Dominick Riolo 8,571 shares;
Gregory Ferone 8,571 shares; and Armando Olivieri 8,571 shares, pursuant to a
contract for the opening of new offices in New City, Mamaroneck and Scarsdale
between such individuals and the Company.
The Company, in August 1995, sold 1,429 restricted shares of Common
Stock to Joseph Jensen for an aggregate purchase price of $5,000.00 pursuant to
a severance compensation package agreement between such individual and the
Company.
In October 1995, the Company sold a total of 20,000 shares of Common
Stock upon exercise of a stock option to one of its key independent contractors
for an aggregate purchase price of $40,650
II-3
<PAGE> 5
pursuant to a previous contract between such individual and the Company.
Also in October 1995, the Company issued 3,050 restricted shares of
Common Stock as performance bonuses to the following individuals in the
following amounts: Neil Hasset 300 shares; Jim Ptacek 100 shares; Carol Livolsi
100 shares; Karen Sheppard 50 shares; Joel Weinberger 50 shares; Jeffrey
Ambrosio 50 shares; Pat Ewing 50 shares; Kerry O'Keefe 50 shares; Richard Boehm
200 shares; Dominick Riolo 100 shares; Joe Jacobs 100 shares; Larry Brenner 100
shares; Dave Burgio 100 shares; Lorraine Buscareno-Smith 100 shares; Dave
Critelli 100 shares; Deborah E. O'Connell 1,200 shares; and Scott Fisher 300
shares.
In addition, in October 1995, the Company granted options to purchase
150,000 shares of Common Stock to EuroMarket Advisory, Inc. ("Euromarket")
pursuant to a consulting agreement. The Company also granted options to purchase
100,000 shares to Texas Capital Securities, Inc. ("Texas Capital") pursuant to
an investment banking agreement.
In November 1995, the Company sold 100 restricted shares of Common
Stock to Gwendolyn Morgan at $4.625 per share for an aggregate purchase of
$462.50 and 5,455 restricted shares of Common Stock to Joel Weinberger at
approximately $5.50 per share for an aggregate purchase price of $30,000.00.
In addition, in November 1995, the Company issued 3,688 restricted
shares of Common Stock to Kerry O'Keefe as a performance bonus.
Also, in November 1995, the Company sold 5,000 restricted shares of
Common Stock to Frank Daguanno at $6.00 per share for an aggregate purchase
price of $30,000.
In December 1995, the Company issued 1,600 restricted shares of Common
Stock as performance bonuses to the following individuals in the following
amounts: Thomas Mallis 100 shares; Carol Sanford 100 shares; Sandy Valle 100
shares; Rosalie Maiorano 100 shares; Angelo Perna 100 shares; Georget Czajkowski
100 shares; Leonard Shrift 100 shares; Patricia White 100 shares; Vinka Pelaic
100 shares; Robert Gilman 100 shares; Jennifer Gilman 100 shares; Debra Seeley
100 shares; Kerry O'Keefe 100 shares; Joel Weinberger 100 shares; Pat Ewing 100
shares; and Tim Bodner 100 shares.
In February 1996, the Company issued 15,254 restricted shares of Common
Stock for an aggregate purchase price of $ 80,000 to the following individuals
in the following amounts: Howard Wilkin 5,405 shares; Alfred Schepis 5,405
shares; and Armando Olivieri 4,444 shares, pursuant to a management agreements
as signing bonuses between such individuals and the Company.
In April 1996, the Company issued a total of 3,400 shares of Common
Stock to an employee for services rendered.
II-4
<PAGE> 6
In October 1996, the Company sold a total of 10,000 shares of Common
Stock upon exercise of a stock option to one of its key independent contractors
for an aggregate purchase price of $78,600 pursuant to a previous contract
between such individual and the Company.
All sales reported under this item were exempt from the registration
requirements of the Securities Act of 1933, as amended, by reason of Section
4(2) thereof and/or the rules and regulations promulgated thereunder as sales of
securities not involving a public offering.
ITEM 27. Exhibits and Financial Statement Schedules
(a) Exhibits
3.1 Registrant's Articles of Incorporation, as
amended, incorporated by reference to the
like numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
3.2 Registrant's By-Laws, incorporated by
reference to the like numbered exhibit in
the Registrant's Registration Statement on
Form SB-2 under the Securities Act of 1933,
as amended, File No. 33-70640-NY
4.1 Resolution of Designation, Powers,
Preferences and Rights of Series A Preferred
Stock, incorporated by reference to the like
numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
4.2 Form of Warrant of Bridge Loan lenders,
incorporated by reference to the like
numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
4.3 Form of Warrant included in Units,
incorporated by reference to the like
numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
4.4 Form of Underwriter's Warrant, incorporated
by reference to the like numbered exhibit in
the Registrant's Registration Statement on
Form SB-2 under the Securities Act of 1933,
as amended, File No. 33-70640-NY
5* Opinion of Akabas & Cohen
II-5
<PAGE> 7
10.1 Restated and Amended Agreement and Plan of
Merger dated December 23, 1992 among the
Registrant and 15 participating
corporations, incorporated by reference to
the like numbered exhibit in the
Registrant's Registration Statement on Form
SB-2 under the Securities Act of 1933, as
amended, File No. 33-70640-NY
10.2 Asset Sale Agreement dated December 31,
1992, incorporated by reference to the like
numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
10.3 Escrow letter regarding certain shares of
Common Stock of the Registrant, incorporated
by reference to the like numbered exhibit in
the Registrant's Registration Statement on
Form SB-2 under the Securities Act of 1933,
as amended, File No. 33-70640-NY
10.4 Omitted.
10.5 Warrant Agreement dated December 12, 1994
between the Registrant and the Warrant
Agent, incorporated by reference to the like
numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
10.6 Omitted.
10.7 1993 Joint Incentive and NonQualified Stock
Option Plan of the Registrant, incorporated
by reference to the like numbered exhibit in
the Registrant's Registration Statement on
Form SB-2 under the Securities Act of 1933,
as amended, File No. 33-70640-NY
10.8 Documents involved in the repurchase of
shares and settlement with Frank Pasatieri,
a former shareholder of the Registrant,
incorporated by reference to the like
numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
10.9 Documents involved in the repurchase of
shares and settlement with Alan Grad, a
former shareholder of the Registrant,
incorporated by reference to the like
numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
II-6
<PAGE> 8
10.10 Form of Lock-up letter executed by
shareholders of the Registrant prior to the
Registrant's initial public offering,
incorporated by reference to the like
numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
10.11 Term-loan Promissory Note to State Bank of
Long Island, incorporated by reference to
the like numbered exhibit in the
Registrant's Registration Statement on Form
SB-2 under the Securities Act of 1933, as
amended, File No. 33-70640-NY
10.12 Documents involved in the repurchase of
shares and settlement with Bernard McGee and
Jay Cruice, former shareholders of the
Registrant, incorporated by reference to the
like numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
10.13 Omitted.
10.14 Form of guaranty of Term-loan Promissory
Note to State Bank of Long Island,
incorporated by reference to the like
numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
10.15 Agreement among Registrant and James Ciocia,
Thomas Povinelli, Gary Besmer and Kathryn
Travis regarding the repayment of advances,
incorporated by reference to the like
numbered exhibit in the Registrant's
Registration Statement on Form SB-2 under
the Securities Act of 1933, as amended, File
No. 33-70640-NY
10.16 Underwriting Agreement between the
Registrant and Patterson Travis, Inc.,
incorporated by reference to exhibit number
1.1 in the Registrant's Registration
Statement on Form SB-2 under the Securities
Act of 1933, as amended, File No.
33-70640-NY
10.17 Stock Purchase Agreement dated February 10,
1995 between Registrant and Steven Gilbert,
incorporated by reference to exhibit 99.1 to
the Company's Current Report on Form 8-K,
dated February 10, 1995
10.18 Noncompetition Agreement dated February 10,
1995 between Registrant and Steven Gilbert,
II-7
<PAGE> 9
incorporated by reference to exhibit 99.2 to
the Company's Current Report on Form 8-K,
dated February 10, 1995
10.19 Employment Agreement dated February 10, 1995
between Steven Gilbert Financial Corp. and
Steven Gilbert, incorporated by reference to
exhibit 99.3 to the Company's Current Report
on Form 8-K, dated February 10, 1995
10.20 Registration Rights Agreement dated February
10, 1995 between Registrant and Steven
Gilbert, incorporated by reference to
exhibit 99.4 to the Company's Current Report
on Form 8-K, dated February 10, 1995
10.21 Letter Agreement dated April 26, 1995
between and Steven Gilbert, incorporated by
reference to exhibit 10.20 in the Company's
quarterly report on Form 10-Q for the fiscal
quarter ended March 31, 1995
10.22* Joint Venture Agreement dated December 28,
1994 between Midwood Tax Service, Inc. and
Registrant
10.23* Promissory notes delivered by James Ciocia,
Thomas Povinelli, Gary Besmer and Kathryn
Travis in payment for cash value of life
insurance policies held by Registrant on the
lives of such officers
10.24* Consulting Agreement dated October 9, 1995
between EuroMarket Advisory, Inc. and
Registrant
10.25* Investment Banking Agreement dated October
17, 1995 between Texas Capital Securities
Inc. and Registrant
10.26* Agreements dated November , 1995 among
Rummco, Ltd., five executive officers of
Registrant, and Registrant in connection
with the sale of stock options.
10.27* Lock-Up Release Letter by Patterson Travis,
Inc. dated January 10, 1996
10.28* Employment Agreement dated April 10, 1995
between Dominick Riolo and Registrant in
connection with the opening of a new office
10.29* Employment Agreement dated April 10, 1995
between Gregory Ferone and Registrant in
connection with the opening of a new office
II-8
<PAGE> 10
10.30* Employment Agreement dated April 10, 1995
between Armando Olivieri and Registrant in
connection with the opening of a new office
10.31* Independent Employment Contract dated
December , 1993 between Abraham Dorfman and
Registrant
10.32* Form of Subscription Letter representing
stock issuances to individuals
10.33* Independent Contractor's Agreement dated
September 6, 1995 between Howard Wilkin and
the Registrant
10.34* Independent Contractor's Agreement dated
September 6, 1995 between Alfred Schepis and
the Registrant
10.35* Independent Contractor's Agreement dated
September 6, 1995 between Armando Olivieri
and the Registrant
11.01* Calculation of Net Income Per Share
16.01 Letter on Change in Certifying Accountant,
incorporated by reference to exhibit of the
Company's Current Report on Form 8-K dated
July 5, 1996
21 List of Subsidiaries, incorporated by
reference to Exhibit 21 in the Company's
Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1995
23.1* Consent of Akabas & Cohen (Included in
Exhibit 5)
23.2 Consent of Weinick Sanders & Co., L.L.P.
23.3 Consent of BDO Seidman, LLP
- ----------------
* previously filed
ITEM 28. Undertakings
The undersigned Registrant hereby undertakes to:
(a)(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
II-9
<PAGE> 11
(i) Include any prospectus required by section 10(a)(3)
of the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information in the registration statement; and
(iii) Include any additional or changed material
information on the plan of distribution;
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering;
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering; and
(e) If the Registrant requests acceleration of the effective date of
the Registration Statement under Rule 461 under the Securities Act, the
Registrant acknowledges that:
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the small business issuer pursuant to the
foregoing provisions, or otherwise, the small business issuer has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the small business issuer of
expenses incurred or paid by a director, officer or controlling person
of the small business issuer 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 small business issuer 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.
II-10
<PAGE> 12
SIGNATURES
In accordance with 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 SB- 2 and authorized this Registration
Statement to be signed on its behalf by the undersigned, in the City of Great
Neck, State of New York, on February 13, 1997.
GILMAN & CIOCIA, INC.
By/s/ James Ciocia
-------------------------
James Ciocia,
President
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates stated.
/s/ James Ciocia President and February 13, 1997
- ------------------------ Director
James Ciocia
/s/ Thomas Povinelli Chief Operating February 13, 1997
- ------------------------ Officer, Chief
Thomas Povinelli Financial Officer
and Director
/s/ Gary Besmer Director February 13, 1997
- ------------------------
Gary Besmer
/s/ Kathryn Travis Director February 13, 1997
- ------------------------
Kathryn Travis
Director February 13, 1997
- ------------------------
Louis Karol
/s/ Seth Akabas Director February 13, 1997
- ------------------------
Seth Akabas
II-11
<PAGE> 13
INDEX
Exhibit Description Page
- ------- ----------- ----
23.2 Consent of Weinick Sanders & Co., L.L.P.
23.3 Consent of BDO Seidman, LLP
II-12
<PAGE> 1
Consent of Weinick, Sanders & Co. LLP
(Independent Certified Public Accountants)
We consent to the use in Amendment No. 6 to the Registration Statement
on Form SB-2 under the Securities Exchange Act of 1993 of our report dated
August 17, 1995 (except for Note 7(d) as to which the date is September 22,
1995) on the consolidated statements of income, stockholder's equity and cash
flows of Gilman & Ciocia, Inc. for the year ended June 30, 1995 and to the
reference to our firm under the heading "Experts" in the Prospectus.
/s/ Weinick, Sanders & Co. LLP
New York, New York
February 12, 1997
<PAGE> 1
CONSENT OF BDO SEIDMAN, LLP
Gilman & Ciocia, Inc.
Great Neck, New York
We hereby consent to the use in the Prospectus constituting a part of this
Registration Statement of our report dated September 30, 1996, relating to the
consolidated financial statements of Gilman & Ciocia, Inc. and subsidiaries,
which is contained in that Prospectus.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
New York, New York
February 13, 1997
