SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ULTRADATA SYSTEMS, INCORPORATED
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(Exact name of Registrant as specified in Charter)
Delaware 43-1401158
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(State of Incorporation) (I.R.S. Employer I.D. Number)
9375 Dielman Industrial Drive, St. Louis, MO 63132
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(Address of Principal Executive Offices)
MONTE ROSS
Ultradata Systems, Incorporated
9375 Dielman Industrial Drive
St. Louis, MO 63132
(314) 997-2250
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(Address and Telephone Number of Agent for Service)
Copy to:
ROBERT BRANTL, ESQ.
322 Fourth Street
Brooklyn, NY 11215
(718) 768-6045
1994 INCENTIVE STOCK OPTION PLAN
AMENDED AND RESTATED 1996 STOCK OPTION PLAN
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(Full Title of Plans)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) per Share (2) Price (2) Fee
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Common Stock 450,000 $4.65 $2,092,949 $552.54
$.01 par value shares
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1. This Registration Statement also covers an indeterminable number of
additional shares that may be issued as a result of an adjustment in the shares
in the event of a stock split, stock dividend or similar capital adjustment, as
required by the Plan.
2. The price stated is estimated solely for purposes of calculation of the
registration fee and is the average of the sum of (i) the aggregate exercise
price of options for 412,530 shares previously granted under the Plans and
(ii) the product resulting from multiplying the remaining 37,470 shares by
$15.00, the closing price of shares of the Common Stock on the NASDAQ SmallCap
Market on March 8, 2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
INCORPORATION OF DOCUMENTS BY REFERENCE.
Ultradata Systems, Incorporated is incorporating by reference
the following documents previously filed with the Securities and Exchange
Commission:
(a) Ultradata's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1998;
(b) Ultradata's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1999;
(c) Ultradata's Quarterly Report on Form 10-QSB for the quarter ended
June 30, 1999;
(d) Ultradata's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1999;
(e) the description of Ultradata's Common Stock contained in its
Registration Statement on Form 8-A.
Ultradata is also incorporating by reference all documents
hereafter filed by Ultradata pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold.
Item 4. DESCRIPTION OF SECURITIES.
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Robert Brantl, Esq., counsel to Ultradata, has passed upon the
validity of the shares registered pursuant to this Registration Statement.
Mr. Brantl holds no interest in the securities of Ultradata.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation to provide indemnification to a director, officer,
employee or agent of the corporation, 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 such party 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 as
determined in accordance with the statute, and except that with respect to any
action which results in a judgment against the person and in favor of the
corporation the corporation may not indemnify unless a court determines that
the person is fairly and reasonably entitled to the indemnification. Section
145 further provides that indemnification shall be provided if the party in
question is successful on the merits.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
4.1 1994 Incentive Stock Option Plan - filed as an exhibit to
Ultradata's Registration Statement on Form SB-2 (33-85218C) and
incorporated herein by reference.
4.2 Amended and Restated 1996 Stock Option Plan
5 Opinion of Robert Brantl, Esq.
23.1 Consent of BDO Seidman LLP, independent certified public
accountants
23.2 Consent of Robert Brantl, Esq. is contained in his opinion, filed
as Exhibit 5.
Item 9. UNDERTAKINGS.
Ultradata 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 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;
(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;
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of Ultradata pursuant to the provisions of the General Corporation Law of the
State of Delaware, or otherwise, Ultradata 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 Ultradata of expenses incurred or paid by a director,
officer or controlling person of Ultradata 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,
Ultradata will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Ultradata
Systems, Inc. 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 under signed,
thereunto duly authorized, in the City of St. Louis and the State of Missouri
on the 9th day of March, 2000.
ULTRADATA SYSTEMS, INCORPORATED
By: /s/ Monte Ross
Monte Ross
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on March 9, 2000.
Name Title
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/s/ Monte Ross President (Chief Executive Officer,
Monte Ross Chief Financial Officer), Chairman of the
Board
/s/ Ernest Clarke Director, Vice President, Controller
Ernest Clarke (Chief Accounting Officer)
/s/ Mark L Peterson Director
Mark L.Peterson
/s/ Steven H. Akre Director
Steven H. Akre
John J. Clancy Director
Donald Rattner Director
INDEX TO EXHIBITS
4.2 Amended and Restated 1996 Stock Option Plan
5 Opinion of Robert Brantl, Esq.
23.1 Consent of BDO Seidman LLP, independent certified public accountants
EXHIBIT 4.2
AMENDED AND RESTATED
1996 STOCK OPTION PLAN OF
ULTRADATA SYSTEMS, INCORPORATED
Adopted by the Board of Directors
on December 4, 1999
1. Purpose.
The purpose of this Amended and Restated Ultradata 1996 Stock
Option Plan (the "1996 Plan") is to reward directors, officers, key employees
and consultants for their best efforts on behalf of the Company, to induce
such employees to remain in the employ of the Company, to attract talented
individuals to join the Company, to motivate such employees to exert their
best efforts on behalf of the Company, and to encourage such employees to
secure or increase their stock ownership in the Company.
As used in the Plan, the term "incentive stock options" means
options which are intended to qualify as incentive stock options within the
meaning of section 422A of the Internal Revenue Code of 1986, as amended from
time to time (the "Code"), and which are designated as incentive stock options
in the Option Agreement. The term "nonqualified stock options" means options
which are not intended to qualify as incentive stock options, and which are
designated as nonqualified stock options in the Option Agreement.
2. Stock Subject to the Plan.
The stock to be issued upon exercise of options granted under the
Plan shall consist of authorized but unissued shares (or of reacquired shares)
of the Common Stock, $.01 par value, of the Company. The maximum number of
shares for which options may be granted under the Plan is 275,000 shares,
subject to adjustment as provided in Section 6.
If any options granted under the Plan expire or terminate for any
reason without having been exercised in full, the unpurchased shares shall
become available for further options pursuant to the Plan.
3. Eligibility of Optionees.
Options may be granted only to officers, key employees, directors
or consultants of the Company or any subsidiary (and all references in this
Plan to officers, key employees, directors or consultants of the Company shall
also refer to and include officers, key employees, directors or consultants of
the Company or any subsidiary of the Company). For purposes of this Plan, an
individual shall be deemed to be a consultant if the individual performs
services for the Company in a capacity other than as employee or director.
More than one option may be granted to any optionee.
In no event shall an option be granted to any person who, at the
time of grant, owns stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of its parent
or subsidiary corporations: provided, however, that this restriction shall
not apply if at the time of grant the option price is not less than 110% of
the fair market value of the stock subject to the option and such option is
not exercisable after the expiration of five (5) years from the date of grant.
4. Administration.
The Plan shall be administered by a Stock Option Committee of the
Board of Directors of the Company (the "Committee") which shall be composed of
at least two (2) members of the Board. No member of the Committee shall be
eligible to participate nor shall have been eligible to participate in the
Plan for a period of at least one (1) year prior to his or her election to
serve on the Committee.
Subject to the express provisions of the Plan, the Committee shall
have full authority (a) to determine, in its discretion, the individuals to
whom, and the times at which, options shall be granted, whether the option
granted shall be an "incentive stock option" or a "nonqualified stock option",
the number of shares subject to each option, the price or prices at which such
shares may be purchased from the Company, and the provisions of the respective
option agreements (which need not be identical), including provisions concern
ing the time or times, when, and the extent to which, the options may be
exercised, the conditions of exercise (including non-competition with the
Company after termination of employment) and the effect of approved leaves of
absence on continuity of service; (b) to prescribe, amend and rescind rules
and regulations relating to the Plan; (c) to interpret the Plan and the
respective option agreements; and (d) to make all other determinations
necessary or advisable for administering the Plan. All determinations and
interpretations by the Committee shall be binding and conclusive upon all
parties.
5. Terms and Conditions of Options.
Subject to the following provisions, all options granted under
this Plan shall be in such form and upon such terms and conditions as the
Committee, in its discretion, may from time to time determine:
(a) Option Price.
(I) Incentive Stock Options. The purchase price per share under
each Incentive Stock Option shall be determined by the Committee. In no
event, however, shall the price per share under each Incentive Stock Option be
less than 100% of the fair market value of the Common Stock on the date of
grant.
The Committee may, at its discretion, provide that the fair market
value shall be the lowest fair market value on any day up to thirty days after
the date of grant. If within that period of up to thirty days the fair market
value of the Common Stock is less than the fair market value on the date of
grant, then the date in that period on which the fair market value is lowest
will be deemed to be the date of grant. In any case, the fair market value
shall be determined in the manner chosen by the Committee as permitted by the
Code.
(II) Nonqualified Stock Options. The option price per share under
each Option granted under the Plan as a nonqualified option shall be deter
mined and fixed by the Committee in its discretion, but shall not be less than
eighty-five percent (85%) of the fair market value of such Shares on the date
of grant of such Option (determined as provided in subsection (a)(I) above.
(b) Term. Each option granted under the Plan shall terminate no
later than ten years after the date on which it was granted, but the Committee
in its discretion may prescribe a shorter period for any individual option or
options.
(c) Offset provisions. If the Committee so determines and the
applicable instrument or instruments evidencing the option so provide, the
exercise of all or any part of an option granted under this Plan may result in
the reduction or termination of another option granted under this Plan to the
extent so determined and provided.
(d) Exercise. An option shall be exercised by written notice of
such exercise, in the form prescribed by the Committee, to the Secretary or
Treasurer of the Company, at its principal office. The notice shall specify
the number of shares for which the option is being exercised (which number, if
less than all of the shares then subject to exercise, shall be 50 or a
multiple thereof) and shall be accompanied by payment in full of the purchase
price of such shares. No shares shall be delivered upon exercise of any
option until all laws, rules and regulations which the Board of Directors or
the Committee may deem applicable have been complied with. If a registration
statement under the Securities Act of 1933 is not then in effect with respect
to the shares issuable upon such exercise, it shall be a condition precedent
that the person exercising the option give to the Company a written
representation and undertaking, satisfactory in form and substance to the
Board of Directors or the Committee, that he is acquiring the shares for his
own account for investment and not with a view to the distribution thereof.
(e) Payment. Payment for shares purchased upon exercise of an
option shall be made either in full or installments, as shall be determined by
the Committee and provided in the applicable instrument or instruments
evidencing such option. If payment is made in installments, the option holder
shall be required to make a down payment in cash of an amount equal to at
least 20 percent of the total option price of the shares purchased and to
deliver to the Company his or her promissory installment note payable to the
Company for an amount equal to the difference between the total option price
of the shares then being purchased and the amount of such down payment. Such
note shall bear interest at such rate as the Committee shall determine of not
less than the applicable federal rate (as defined in the Internal Revenue code
of 1986, as amended, and must pledge the shares purchased as security. The
option holder shall pay the balance of the option price as provided in such
note and subject to such terms and conditions as may be provided in the
applicable instrument or instruments evidencing the option; in any event, he
or she shall make such payments as may be necessary to make the aggregate
payments on account of the total option price equal to:
(1) at least 40 percent of the total option price of the
shares purchased by the end of 18 months from the date of purchase,
(2) at least 60 percent of the total option price by the end
of three years from the date of purchase,
(3) at least 80 percent of the total option price by the end
of four years from the date of purchase and
(4) the entire amount of the total option price by the end of
five years from the date of purchase.
Dividends on partly paid shares issued to such option holder
(other than dividends in stock of the Company) shall be declared and paid only
upon the basis of the percentage of the total option price actually received
thereon by the Company, and any such dividends paid prior to final payment for
the shares shall be applied by the Company against unpaid installments of the
promissory notes evidencing the option holder's indebtedness for the option
price in the order of their maturity. Certificates for partly paid shares
shall be registered in the name of the option holder and shall, immediately
upon issue, be delivered to the Company, endorsed in blank by the option
holder or accompanied by a separate stock power so endorsed, in pledge as
security for the payment of the unpaid balance of the option price. The
certificates issued to represent partly paid shares shall state thereon the
total amount of the consideration to be paid therefor and the amount paid
thereon.
(f) The person exercising an option shall not be considered a
record holder of the stock so purchased for any purpose until the date on
which he is actually recorded as the holder of such stock upon the stock
records of the Company.
(g) The Company shall pay all original issue and transfer taxes
with respect to the issue and transfer of shares of Common Stock of the
Company pursuant hereto and all other fees and expenses necessarily incurred
by the Company in connection therewith.
(h) The aggregate fair market value (determined as of the date an
Incentive Stock Option is granted) of the stock with respect to which an
Incentive Stock Option is exercisable for the first time by any employee
during any calendar year under all plans of the Company (and parent and
subsidiary corporations) shall not exceed $100,000.
(i) No holder of any option under the Plan shall, by virtue of
holding such option, be entitled to any rights of a stockholder in the
Company.
(j) Termination of employment. Upon the termination of an option
holder's employment for any reason other than death, termination for cause, or
retirement pursuant to the terms of a retirement program of the Company, his
or her option privileges shall be limited to the shares which were immediately
purchasable by him at the date of such termination, and such option privileges
shall expire unless exercised within three months after the date of such
termination, but not later than the date of expiration of the option. If an
option holder's employment is terminated for cause, all rights under his or
her option shall expire immediately upon the giving to the option holder of
the notice of such termination. Upon the termination of an option holder's
employment by reason of retirement pursuant to the terms of a retirement
program of the Company, his or her option privileges shall be limited to the
shares which were immediately purchasable at the date of such retirement, and
such option privileges shall expire unless exercised within the period not to
exceed two years specified by the Committee in the applicable instrument or
instruments evidencing the option, but not later than the date of expiration
of the option.
(k) Death of option holder. Upon the death of an option holder,
his or her option privileges shall apply to those shares which were immediately
purchasable at the time of death, and such privileges shall expire
unless exercised (by the executor or administrator of the option holder's
estate or by a person who acquired the right to exercise such option by
bequest or inheritance or by reason of the option holder's death) within (1)
12 months after the date of death, or (2) in the event of death following
termination of employment by reason or retirement pursuant to the terms of a
retirement program of the Company, the period in which the option privileges
may be exercised upon termination by reason of such retirement as provided by
the Committee in the applicable instrument or instruments evidencing the
option, whichever period terminates last, or such longer period as may be
permitted by the Committee in a special case, but in no event later than the
date of expiration of the option.
6. Adjustments Upon Changes in Capitalization.
The option agreements shall contain such provisions as the
Committee shall determine to be appropriate for the adjustment of the kind and
number of shares subject to each outstanding option, or the option prices, or
both, in the event of any changes in the outstanding Common Stock of the
Company by reason of stock dividends, stock splits, recapitalizations,
reorganizations, mergers, consolidations, sales or exchanges of assets,
combinations or exchange of shares, offering of subscription rights or any
other type of change. In the event of any such change in the outstanding
Common Stock, the kind and aggregate number of shares available under the Plan
shall be appropriately adjusted by the Committee, whose determination shall be
conclusive.
7. Term of Plan.
The Board of Directors may terminate this Plan at any time.
Termination of the Plan will not affect rights and obligations theretofore
granted and then in effect. No options may be granted later than ten years
from May 22, 1996, the date of the Plan's adoption by the Board of Directors.
8. Transferability.
Options granted under this Plan shall provide that they will not be
transferable.
9. Amendment and Revocation.
The Board of Directors alone shall have the right to alter, amend or revoke
the Plan or any part thereof at any time and from time to time, provided,
however, that without the consent of the optionees, no change may be made in
any option theretofore granted which will impair the rights of existing
optionees; and provided further that the Board of Directors may not, without
the approval of the holders of a majority of the outstanding Common Stock,
make any alteration or amendment to the Plan which changes the aggregate
number of shares of Common Stock which may be issued, under the Plan, extend
the term of the Plan or of options granted thereunder, reduce the option
price below that now provided for in the Plan, change the conditions or
exercise of options now provided for in the Plan, or change the employees or
class of employees eligible to receive options thereunder.
10. Ratification of the Plan.
This Plan shall be submitted to the stockholders of the Company
for approval at a meeting to be held within twelve months following its
adoption by the Board.
* * * * *
<PAGE>
EXHIBIT 5
ROBERT BRANTL, ESQ.
322 Fourth Street
Brooklyn, NY 11215
718-768-6045
March 9, 2000
Ultradata Systems, Incorporated
9375 Dielman Industrial Drive
St. Louis, MO 63132
Gentlemen:
With reference to the Registration Statement on Form S-8 which Ultradata
Systems, Inc. proposes to file with the Securities and Exchange Commission
registering (a) 175,000 common shares which may be offered and sold by
Ultradata Systems, Inc. under the 1994 Incentive Stock Option Plan and (b)
275,000 common shares which may be offered and sold by Ultradata Systems, Inc.
under the Amended and Restated 1996 Stock Option Plan (collectively, the
Shares ), I am of the opinion that all proper corporate proceedings have been
taken so that the Shares, upon sale and payment therefor in accordance with
the Plans, will be legally issued, fully paid, and nonassessable.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement referred to
above.
Yours,
/s/ Robert Brantl
Robert Brantl
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Ultradata Systems, Inc.
St. Louis, Missouri
We hereby consent to the incorporation by reference in the Form S-8 (0-25380)
constituting a part of this Registration Statement of our report dated March 4,
1999, relating to the consolidated financial statements appearing in the
Company's Annual Report on Form 10-KSB for the year ended December 31, 1998.
/s/ BDO Seidman LLP
BDO Seidman LLP
St. Louis, Missouri
March 10, 2000
