As Filed with the Securities and Exchange Commission on November 5, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
APPLIED CELLULAR TECHNOLOGY, INC.
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(Exact name of registrant as specified in its charter)
MISSOURI
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(State or other jurisdiction of incorporation or organization)
43-1641533
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(I.R.S. Employer Identification No.)
James River Professional Center
Highway 160 & CC, Suite 5, P.O. Box 2067
Nixa, Missouri 65714
(417) 725-9888
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(Address of principal executive offices)
1996 Non-Qualified Stock Option Plan of Applied Cellular Technology, Inc.
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(Full title of the Plan)
Richard J. Sullivan
James River Professional Center
Highway 160 & CC, Suite 5, P.O. Box 2067
Nixa, Missouri 65714
(417) 725-9888
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(Name and address of agent for service)
Copies of all correspondence to:
Denis P. McCusker, Esq.
Bryan Cave LLP
One Metropolitan Square
211 North Broadway, Suite 3600
St. Louis, Missouri 63102-2750
(314) 259-2000
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered offering price per aggregate offering registration fee
unit(1) price(1)
- ----------------------------- -------------------- --------------------- ---------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par
value per share 5,000,000 shares $7.3125 $36,562,500 $11,080
- ----------------------------- -------------------- --------------------- ---------------------- ------------------
(1) Pursuant to Rule 457(b), the proposed offering price and registration fee
have been calculated on the basis of the average of the high and low
trading prices for the Common Stock on November 4, 1997 as reported on the
Nasdaq Small-Cap Market.
==================================================================================================================
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
("Securities Act"), and the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the Registrant with the
Commission pursuant to the Exchange Act are incorporated herein by reference:
(1) the Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1996 (filed on March 31, 1997);
(2) the Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997 (filed on May 13, 1997);
(3) the Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997 (filed on August 13, 1997);
(4) The Registrant's Current Report on Form 8-K/A filed with the
Commission on January 15, 1997;
(5) The Registrant's Current Report on Form 8-K filed with the
Commission on February 3, 1997;
(6) The Registrant's Current Report on Form 8-K filed with the
Commission on April 15, 1997;
(7) The Registrant's Current Report on Form 8-K and Form 8-K/A
filed with the Commission on February 19, 1997 and April 15, 1997,
respectively;
(8) The Registrant's Current Report on Form 8-K and Form 8-K/A
filed with the Commission on April 2, 1997 and April 21, 1997,
respectively; and
(9) The Registrant's Current Report on Form 8-K and Form 8-K/A
filed with the Commission on April 11, 1997 and June 2, 1997,
respectively.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and
prior to the termination of the offering shall hereby be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded for purposes of this
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<PAGE>
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document incorporated or deemed to be incorporated herein
by reference, which statement is also incorporated herein by reference,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Item 4. Description of Securities.
The Registrant's common stock is registered under Section 12 of the
Securities Exchange Act of 1934, as amended.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Sections 351.355(1) and (2) of The General and Business Corporation Law of
the State of Missouri provide that a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses, 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 the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful, except that, in the case of an action or suit by or in the right
of the corporation, the corporation may not indemnify such persons against
judgments and fines and no person shall be indemnified as to any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the corporation,
unless and only to the extent that the court in which the action or suit was
brought determines upon application that such person is fairly and reasonably
entitled to indemnity for proper expenses. Section 351.355(3) provides that, to
the extent that a director, officer, employee or agent of the corporation has
been successful in the defense of any such action, suit or proceeding or any
claim, issue or matter therein, he shall be indemnified against expenses,
including attorneys' fees, actually and reasonably incurred in connection with
such action, suit or proceeding. Section 351.355(7) provides that a corporation
may provide additional indemnification to any person indemnifiable under
subsection (1) or (2), provided such additional indemnification is authorized by
the corporation's articles of incorporation or an amendment thereto or by a
shareholder-approved bylaw or agreement, and provided further that no person
shall thereby be indemnified against conduct which was finally adjudged to have
been knowingly fraudulent, deliberately dishonest or willful misconduct or which
involved an accounting for profits pursuant to Section 16(b) of the Securities
Exchange Act of 1934.
The bylaws of the Registrant provide that the Registrant shall indemnify,
to the full extent permitted under Missouri law, any director, officer, employee
or agent of the Registrant who has served as a director, officer, employee or
agent of the Registrant or, at the Registrant's request, has served as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to such provisions, the Registrant has been informed that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed
Not applicable.
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<PAGE>
Item 8. Exhibits.
Exhibit No. Description
4.1 1996 Non-Qualified Stock Option Plan of Applied Cellular
Technology, Inc., as amended as of August 20, 1997.
5.1 Opinion of Bryan Cave LLP relating to legality of the Common
Stock.
23.1 Consent of Rubin, Brown, Gornstein & Co. LLP.
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i)To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii)To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such
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<PAGE>
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 Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of St. Louis, State of Missouri, on November 3, 1997.
APPLIED CELLULAR TECHNOLOGY, INC.
By: /s/ David A. Loppert
-----------------------------------------
David A. Loppert
Vice President, Treasurer and Chief
Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Garrett A. Sullivan and David A. Loppert, and each of them (with full power to
each of them to act alone), the true and lawful attorney in fact and agent for
the undersigned, to act on behalf of and in the name of the undersigned in
connection with this Registration Statement, including the authority to sign any
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with exhibits and any and all other documents filed with
respect thereto, with the Securities and Exchange Commission (or any other
governmental or regulatory authority), and each such person ratifies and
confirms all that said attorneys in fact and agents 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 and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman of the Board of Directors,
Chief Executive Officer and
Secretary(Principal Executive
/s/Richard J. Sullivan Officer) November 3, 1997
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(Richard J. Sullivan)
/s/Garrett A. Sullivan President and Director (Principal
- ------------------------ Operating Officer) November 3, 1997
(Garrett A. Sullivan)
Vice President, Treasurer and Chief
/s/David A. Loppert Financial Officer (Principal
- ------------------------ Accounting Officer) November 3, 1997
(David A. Loppert)
/s/Angela M. Sullivan Director November 3, 1997
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(Angela M. Sullivan)
/s/Daniel E. Penni Director November 3, 1997
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(Daniel E. Penni)
/s/Arthur F. Noterman Director November 3, 1997
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(Arthur F. Noterman)
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description
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4.1 1996 Non-Qualified Stock Option Plan of Applied Cellular
Technology, Inc., as amended as of August 20, 1997.
5.1 Opinion of Bryan Cave LLP relating to legality of the Common
Stock.
23.1 Consent of Rubin, Brown, Gornstein & Co. LLP.
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
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Exhibit 4.1
APPLIED CELLULAR TECHNOLOGY, INC.
1996 NON-QUALIFIED STOCK OPTION PLAN
(As amended through August 20, 1997)
<PAGE>
APPLIED CELLULAR TECHNOLOGY, INC.
1996 NON-QUALIFIED STOCK OPTION PLAN
(As amended through August 20, 1997)
TABLE OF CONTENTS
ARTICLE I
1. Name and Purpose............................................................3
1.1. Name.............................................................3
1.2. Purpose..........................................................3
ARTICLE II
2. Definitions of Terms and Rules of Construction..............................3
2.1. General Definitions..............................................3
(a) Affiliate................................................3
(b) Agreement................................................3
(c) Board....................................................3
(d) Change of Control........................................3
(e) Company..................................................4
(f) Committee................................................4
(g) Common Stock.............................................4
(h) Director.................................................4
(i) Effective Date...........................................4
(j) Employee.................................................4
(k) Employer.................................................4
(l) Fair Market Value........................................4
(m) NQSO.....................................................4
(n) Option...................................................4
(o) Parent...................................................4
(p) Participant..............................................4
(q) Plan.....................................................4
(r) Share....................................................4
(s) Subsidiary...............................................4
2.2. Other Definitions................................................5
2.3. Conflicts in Plan................................................5
ARTICLE III
3. Common Stock................................................................5
3.1. Number of Shares.................................................5
3.2. Reusage..........................................................5
3.3. Adjustments......................................................5
ARTICLE IV
4. Eligibility.................................................................5
4.1. Determined By Committee..........................................5
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ARTICLE V
5. Administration..............................................................6
5.1. Committee........................................................6
5.2. Authority........................................................6
5.3. Adjudication of Claims...........................................6
5.4. Options for Directors............................................7
ARTICLE VI
6. Amendment, Termination, and Change of Control...............................7
6.1. Power of Board...................................................7
6.2. Limitation.......................................................7
6.3. Term.............................................................7
6.4. Termination......................................................7
6.5. Effect of Amendment or Termination...............................7
6.6. Committee's Right................................................8
6.7. Change of Control................................................8
ARTICLE VII
7. Agreements..................................................................8
7.1. Grant Evidenced by Agreement.....................................8
7.2. Provisions of Agreement..........................................8
ARTICLE VIII
8. Payment, Dividends, and Withholdings........................................9
8.1. Payment..........................................................9
8.2. Dividend Equivalents.............................................9
8.3. Withholding......................................................9
ARTICLE IX
9. Options. 9
9.1. Type of Options..................................................9
9.2. Terms of NQSOs..................................................10
9.3. Determination by Committee......................................10
ARTICLE X
10. Miscellaneous Provisions..................................................10
10.1. Underscored References.........................................10
10.2. Number and Gender..............................................10
10.3. Governing Law..................................................10
10.4. Purchase for Investment........................................10
10.5. No Employment Contract.........................................11
10.6. No Effect on Other Benefits....................................11
ii
<PAGE>
APPLIED CELLULAR TECHNOLOGY, INC.
1996 NON-QUALIFIED STOCK OPTION PLAN
(As amended through August 20, 1997)
ARTICLE I
NAME AND PURPOSE
1. Name and Purpose.
1.1. Name.
The name of this Plan is the "Applied Cellular Technology, Inc. 1996
Non-Qualified Stock Option Plan."
1.2. Purpose
The Company has established this Plan to attract, retain, motivate and
reward Employees and Directors and to encourage ownership of the Company's
Common Stock by them.
ARTICLE II
DEFINITIONS OF TERMS AND RULES OF CONSTRUCTION
2. Definitions of Terms and Rules of Construction.
2.1. General Definitions.
The following words and phrases, when used in the Plan, unless otherwise
specifically defined or unless the context clearly otherwise requires, shall
have the following respective meanings:
(a) Affiliate. A Parent or Subsidiary of the Company.
(b) Agreement. The document which evidences the grant of an
Option under the Plan and which sets forth the terms, conditions and
provisions of, and restrictions relating to, such Option.
(c) Board. The Board of Directors of the Company.
(d) Change Of Control. The acquisition, without the approval of
the Board, by any person or entity, other than the Company or a
Related Entity, of more than 20% of the outstanding shares of the
Company's voting common stock through a tender offer, exchange offer
or otherwise; the liquidation or dissolution of the Company following
a sale or other disposition of all or substantially all of its assets;
a merger or consolidation involving the Company which results in the
Company not being the surviving parent corporation; or any time during
any two-year period in which individuals who constituted the Board at
the start of such period (or whose election was approved by at least
two-thirds of the then members of the Board who were members at the
start of the two-year period) do not constitute at least 50% of the
Board for any reason. A Related Entity is the Parent, a Subsidiary or
any employee benefit plan (including a trust forming a part of such a
plan) maintained by the Parent, the Company or a Subsidiary.
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(e) Company. Applied Cellular Technology, Inc.
(f) Committee. The Committee described in Section 5.1.
(g) Common Stock. The Company's common stock which presently has
a par value of $.001 per Share.
(h) Director. A member of the Board or a member of the Board of
Directors of any Affiliate.
(i) Effective Date. The date that the Plan is approved by the
shareholders of the Company which was August 2, 1996.
(j) Employee. Any person employed by the Employer.
(k) Employer. The Company and all Affiliates.
(l) Fair Market Value. The closing price of the Shares on the
NASDAQ on a given date, or, in the absence of sales on a given date,
the closing price on the NASDAQ on the last day on which a sale
occurred prior to such date.
(m) NQSO. A non-qualified stock option, which is an Option that
does not qualify as an Incentive Stock Option under Section 422 of the
Internal Revenue Code of 1986, as amended.
(n) Option. An option to purchase Shares granted under the Plan.
(o) Parent. Any corporation (other than the Company or a
Subsidiary) in an unbroken chain of corporations ending with the
Company, if, at the time of the grant of an Option, each of the
corporations (other than the Company or a Subsidiary) owns stock
possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
(p) Participant. An individual who is granted an Option under the
Plan. Options may be granted only to Employees and Directors.
(q) Plan. The Applied Cellular Technology, Inc. 1996
Non-Qualified Stock Option Plan and all amendments and supplements to
it.
(r) Share. A share of Common Stock.
(s) Subsidiary. Any corporation, other than the Company, in an
unbroken chain of corporations beginning with the Company if, at the
time of grant of an Option, each of the corporations, other than the
last corporation in the unbroken chain, owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one
of the other corporations in such chain.
2.2. Other Definitions.
In addition to the above definitions, certain words and phrases used in the
Plan and any Agreement may be defined in other portions of the Plan or in such
Agreement.
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2.3. Conflicts in Plan.
In the case of any conflict in the terms of the Plan relating to an Option,
the provisions in the ARTICLE of the Plan which specifically grants such Option
shall control those in a different ARTICLE.
ARTICLE III
COMMON STOCK
3. Common Stock.
3.1. Number of Shares.
The number of Shares for which Options may be granted under the Plan shall
be 5,000,000 Shares. Such Shares may be authorized but unissued Shares, Shares
held in the treasury, or both.
3.2. Reusage.
If an Option expires or is terminated, surrendered, forfeited, or cancelled
without having been fully exercised, the Shares with respect to which such
Option has not been exercised at the time of termination, surrender, forfeiture,
or cancellation shall again be available for use under the Plan. In addition,
Shares delivered to the Company as payment of the exercise price of an Option
shall again be available for use under the Plan.
3.3. Adjustments.
If there is any change in the Common Stock of the Company by reason of any
stock dividend, spin-off, split-up, spin-out, recapitalization, merger,
consolidation, reorganization, combination or exchange of shares, number and
class of shares available for Options and the number of Shares subject to
outstanding Options, and the price thereof, as applicable, shall be
appropriately adjusted by the Committee.
ARTICLE IV
ELIGIBILITY
4. Eligibility.
4.1. Determined By Committee.
The Participants and the Options they receive under the Plan shall be
determined solely by the Committee. In making its determinations, the Committee
shall consider past, present and expected future contributions of Participants
and potential Participants to the Employer, including, without limitation, the
performance of, or the refraining from the performance of, services.
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<PAGE>
ARTICLE V
ADMINISTRATION
5. Administration.
5.1. Committee.
The Plan shall be administered by the Committee. The Committee shall
consist of the Board, unless the Board appoints a Committee of two or more but
less than all of the Board. If the Committee does not include the entire Board,
it shall serve at the pleasure of the Board, which may from time to time appoint
members in substitution for members previously appointed and fill vacancies,
however caused, in the Committee. The Committee may select one of its members as
its Chairman and shall hold its meetings at such times and places as it may
determine. A majority of its members shall constitute a quorum. All
determinations of the Committee shall be made by a majority of its members. Any
decision or determination reduced to writing and signed by a majority of the
members shall be fully as effective as if it had been made by a majority vote at
a meeting duly called and held.
5.2. Authority.
Subject to the terms of the Plan, the Committee shall have discretionary
authority to:
(a) determine the individuals to whom Options are granted, the amounts
of Options to be granted and the time of all such grants;
(b) determine the terms, conditions and provisions of, and
restrictions relating to, each Option granted;
(c) interpret and construe the Plan and all Agreements;
(d) prescribe, amend and rescind rules and regulations relating to the
Plan;
(e) determine the content and form of all Agreements;
(f) determine all questions relating to Options under the Plan;
(g) maintain accounts, records and ledgers relating to Options;
(h) maintain records concerning its decisions and proceedings;
(i) employ agents, attorneys, accountants or other persons for such
purposes as the Committee considers necessary or desirable; (j) take, at
anytime, any action permitted by Section 6.7 irrespective of whether any
Change of Control has occurred or is imminent; and
(k) do and perform all acts which it may deem necessary or appropriate
for the administration of the Plan and carry out the purposes of the Plan.
5.3. Adjudication of Claims.
The Committee shall have discretionary authority to make all determinations
as to the right to benefits under the Plan. In the event that a Participant
believes he has not received the benefits to which he is entitled under the
Plan, a claim shall be made in writing to the Committee.
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<PAGE>
The claim shall be reviewed by the Committee. If the claim is approved or
denied, in full or in part, the Committee shall provide a written notice of
approval or denial within 90 days with, in the case of a denial, the specific
reasons for the denial and specific reference to the provisions of the Plan
and/or Agreement upon which the denial is based. A claim shall be deemed denied
if the Committee does not take any action within the aforesaid 90 day period. If
a claim is denied or deemed denied and a review is desired, the Participant
shall notify the Committee in writing within 60 days of the receipt of notice of
denial or the date on which the claim is deemed to be denied, as the case may
be. In requesting a review, the Participant may review the Plan or any document
relating to it and submit any written issues and comments he may deem
appropriate. The Committee shall then review the claim and provide a written
decision within 60 days. This decision, if adverse to the Participant, shall
state the specific reasons for the decision and shall include reference to
specific provisions of the Plan and/or Agreement on which the decision is based.
The Committee's decision on review shall be final.
5.4. Options for Directors.
Notwithstanding any other provision of the Plan, all determinations
relating to whether or not a member of the Board shall receive an Option, the
terms and conditions relating to any Option granted to such member, and all
matters relating to such Option after it is granted shall be made by the Board,
and the Board shall have all of the powers and authorities granted in the Plan
to the Committee for such purposes.
ARTICLE VI
AMENDMENT, TERMINATION, AND CHANGE OF CONTROL
6. Amendment, Termination, and Change of Control.
6.1. Power of Board.
Except as hereinafter provided, the Board shall have the sole right and
power to amend the Plan at any time and from time to time.
6.2. Limitation.
The Board may not amend the Plan, without approval of the shareholders of
the Company, in a manner which would violate applicable law.
6.3. Term.
The Plan shall commence as of the Effective Date and, subject to the terms
of the Plan, shall continue in full force and effect until the earlier of March
15, 2006 or the termination of the Plan by the Board.
6.4. Termination.
The Plan may be terminated at any time by the Board.
6.5. Effect of Amendment or Termination.
Subject to the provisions of Section 6.6, the amendment or termination of
the Plan shall not adversely affect a Participant's right to any Option granted
prior to such amendment or termination.
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6.6. Committee's Right.
Any Option granted may be converted, modified, forfeited or cancelled, in
whole or in part, by the Committee if and to the extent permitted in the Plan or
applicable Agreement or with the consent of the Participant to whom such Option
was granted.
6.7. Change of Control.
In order to maintain a Participant's rights in the event of a Change in
Control, the Committee, in its sole discretion, may, in any Agreement evidencing
an Option, or at any time prior to, or simultaneously with or after a Change in
Control, provide such protection as it may deem necessary. Without, in any way,
limiting the generality of the foregoing sentence or requiring any specific
protection, the Committee may:
(a) provide for the acceleration of any time periods relating
to the exercise of such Option so that such Option may be exercised in
full on or before a date fixed by the Committee;
(b) provide for the purchase of such Option, upon the
Participant's request, for an amount of cash equal to the amount which
could have been attained upon the exercise of such Option had such
Option been currently exercisable;
(c) make such adjustment to the Option then outstanding as the
Committee deems appropriate to reflect such transaction or change;
and/or
(d) cause the Options then outstanding to be assumed, or new
Options substituted therefor, by the surviving corporation in such
change.
ARTICLE VII
AGREEMENTS
7. Agreements
7.1. Grant Evidenced by Agreement.
The grant of any Option under the Plan shall be evidenced by an Agreement
which shall describe the Option granted and the terms and conditions of the
Option. The granting of any Option shall be subject to, and conditioned upon,
the recipient's execution of any Agreement required by the Committee. Except as
otherwise provided in an Agreement, all capitalized terms used in the Agreement
shall have the same meaning as in the Plan, and the Agreement shall be subject
to all of the terms of the Plan.
7.2. Provisions of Agreement.
Each Agreement will provide that the grantee shall not resign as an
Employee or Director until at least one year has elapsed. Subject to the
preceding sentence and the other terms of the Plan, each Agreement shall contain
such additional provisions that the Committee shall determine to be necessary,
desirable and appropriate for the Option granted.
8
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ARTICLE VIII
PAYMENT, DIVIDENDS, AND WITHHOLDING
8. Payment, Dividends, and Withholdings.
8.1. Payment.
Upon the exercise of an Option, the amount due the Company shall be paid:
(a) in cash;
(b) by the tender or constructive tender to the Company of Shares
owned by the optionee and registered in his name having a Fair Market Value
equal to the amount due to the Company;
(c) in other property, rights and credits, including the Participant's
promissory note;
(d) in cash, but by means of a so-called "cashless exercise" of an
Option; and/or
(e) by any combination of the payment methods specified in (a), (b),
(c) and (d) above.
Notwithstanding, the foregoing, any method of payment other than (a) may be used
only with the consent of the Committee or if and to the extent so provided in an
Agreement. The proceeds of the sale of Common Stock purchased pursuant to an
Option shall be added to the general funds of the Company or to the Shares held
in treasury, as the case may be, and used for the corporate purposes of the
Company as the Board shall determine.
8.2. Dividend Equivalents.
Grants of Options may include dividend equivalent payments or dividend
credit rights.
8.3. Withholding.
The Company may, at the time any Option is exercised, withhold from the
Shares issuable upon the exercise of an Option, any amount necessary to satisfy
federal, state and local income and/or other tax withholding requirements with
respect to the exercise of such Option. The Committee or the Company may require
a participant to tender to the Company cash in the amount necessary to comply
with any such withholding requirements.
ARTICLE IX
OPTIONS
9. Options.
9.1. Type of Options.
Only NQSOs may be granted by the Committee under the Plan.
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9.2. Terms of NQSOs.
The terms of each NQSO shall provide that (a) such Option shall not be
treated as an Incentive Stock Option under Section 422 of the Internal Revenue
Code of 1986, as amended, (b) that the Option will not be exercisable (i) until
at least one year after the Option has been granted and (ii) unless the optionee
is a Director or an Employee at the time of exercise or has ceased to be such at
least one year after the Option is granted and after it is exercisable because
of death, total and permanent disability or termination by the Company without
cause, and (c) that such option shall not be exercisable more than ten years
after the date of grant. The purchase price for Shares under any NQSO shall be
not less than 85% of the Fair Market Value of the Shares at the time the Option
is granted.
9.3. Determination by Committee.
Except as otherwise provided in Section 9.2, or otherwise in the Plan, the
terms of all Options shall be determined by the Committee.
ARTICLE X
MISCELLANEOUS PROVISIONS
10. Miscellaneous Provisions.
10.1. Underscored References.
The underscored references contained in the Plan are included only for
convenience, and they shall not be construed as a part of the Plan or in any
respect affecting or modifying its provisions.
10.2. Number and Gender.
The masculine and neuter, wherever used in the Plan, shall refer to either
the masculine, neuter or feminine; and, unless the context otherwise requires,
the singular shall include the plural and the plural the singular.
10.3. Governing Law.
This Plan shall be construed and administered in accordance with the laws
of the State of Missouri.
10.4. Purchase for Investment.
The Committee may require each person purchasing Shares pursuant to an
Option to represent to and agree with the Company in writing that such person is
acquiring the Shares for investment and without a view to distribution or
resale. The certificates for such Shares may include any legend which the
Committee deems appropriate to reflect any restrictions on transfer. All
certificates for Shares delivered under the Plan shall be subject to such
stock-transfer orders and other restrictions as the Committee may deem advisable
under all applicable laws, rules and regulations, and the Committee may cause a
legend or legends to be put on any such certificates to make appropriate
references to such restrictions.
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10.5. No Employment Contract.
The adoption of the Plan shall not confer upon any Employee any right to
continued employment nor shall it interfere in any way with the right of the
Employer to terminate the employment of any of its Employees at any time.
10.6. No Effect on Other Benefits.
The grant of Options under the Plan shall have no effect on any benefits to
which a Participant may be entitled from the Employer, under another plan or
otherwise, or preclude a Participant from receiving any such benefits.
11
Exhibit 5.1
BRYAN CAVE LLP
ONE METROPOLITAN SQUARE
211 N. BROADWAY, SUITE 3600
ST. LOUIS, MISSOURI 63102-2750
(314) 259-2000
FACSIMILE: (314) 259-2020
DENIS P. MCCUSKER
direct dial number
(314) 259-2455
November 5, 1997
Board of Directors
Applied Cellular Technology, Inc.
James River Professional Center
Highway 160 & CC, Suite 3
P.O. Box 2067
Nixa, Missouri 65714
Gentlemen:
We are acting as counsel for Applied Cellular Technology, Inc., a Missouri
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission under the Securities Act of 1933, as amended.
The Registration Statement relates to 5,000,000 shares of the Company's common
stock, $.001 par value per share, issuable under the 1996 Non-Qualified Stock
Option Plan of Applied Cellular Technology, Inc. (the "Plan).
In connection herewith, we have examined and relied without independent
investigation as to matters of fact upon such certificates of public officials,
such statements and certificates of officers of the Company and originals or
copies certified to our satisfaction of the Registration Statement, the Articles
of Incorporation and By-laws of the Company as amended and now in effect,
proceedings of the Board of Directors of the Company and such other corporate
records, documents, certificates and instruments as we have deemed necessary or
appropriate in order to enable us to render this opinion. In rendering this
opinion, we have assumed the genuineness of all signatures on all documents
examined by us, the due authority of the parties signing such documents, the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies.
Based upon and subject to the foregoing, it is our opinion that the
5,000,000 shares of common stock of the Company covered by the Registration
Statement, when issued on exercise of options granted pursuant to the Plan, will
be legally issued, fully paid and non-assessable shares of Common Stock of the
Company.
We hereby consent to the reference to our name in the Registration
Statement under the caption "Legal Matters" and further consent to the filing of
this opinion as Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ Bryan Cave LLP
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Applied Cellular Technology, Inc. of our report, dated
March 7, 1997, on Applied Cellular Technology, Inc. and Subsidiaries, included
in Applied Cellular Technology, Inc.'s Form 10-KSB for the year ended December
31, 1996, and to the reference to us under the heading "Independent Auditors" in
the Prospectus which is a part of this Registration Statement.
/s/ Rubin, Brown, Gornstein & Co. LLP
RUBIN, BROWN, GORNSTEIN & CO. LLP
St. Louis, Missouri
October 28, 1997
