As filed with the Securities and Exchange Commission on September
18, 1996
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
ACROSS DATA SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
New York
(State or other jurisdiction of
incorporation or organization) 11-2920559
(I.R.S. Employer Identification
Number)
382 Main Street
Salem, New Hampshire 03079
(603) 898-9800
(Address of principal executive offices) (Zip code)
Robert R. MacDonald
Across Data Systems, Inc.
382 Main Street
Salem, New Hampshire 03079
(603) 898-9800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________________________
Copies of all communications to:
Edward W. Kerson, Esq.
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
(212) 969-3290
_________________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount maximum maximum Amount
securities to be offering aggregate of
to be registered price per offering Registration
registered (1) share (2) price(2) Fee(2)
Common 627,667 $4.96 $3,114,934.38 $1,074.12
Stock par
value $.01 272,333 $9.94 $2,706,990.02 $ 933.44
per share ------- --------
900,000 shares $2,007.56
(1) The maximum number of shares as to which awards may be granted
under the Across Data Systems, Inc. (formerly known as Advanced
Systems U.S.A. (A.S.U.), Inc.) 1995 Stock Incentive Plan (the
"Plan"). Pursuant to Rule 416, there are also being registered
such additional indeterminate number of shares as may be required
to cover possible adjustments under such Plans.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) as to 272,333 shares,
calculated on the basis of the high and low prices of the Common
Stock as reported on the NASDAQ National Market on September 12,
1996, and as to 627,667 shares pursuant to Rule 457(h). The
Options have varying exercise prices ranging from $0.69 per share
to $8.82 per share.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed with the Securities and Exchange
Commission by Across Data Systems, Inc., a New York corporation
(the "Corporation" or the "Registrant"), are incorporated herein by
reference:
(1) The Corporation's Annual Report filed on Form 10-K and on Form
10-K/A for the fiscal year ended December 31, 1995, the
Corporation's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996 and the Corporation's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996.
(2) All documents subsequently filed by the Corporation pursuant
to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicated that all remaining securities
offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference
in the registration statement and to be part thereof from the date
of filing such documents. Any statement in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this Registration
Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
(3) The description of the Corporation's Common Stock, par value
$.01 per share, contained in the Company's Registration Statement
filed on Form 8-A pursuant to Section 12 of the Securities Exchange
Act of 1934.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article SIXTH of the Corporation's Certificate of Incorporation
provides that a director of the Corporation shall not be liable to
the Corporation for breach of fiduciary duty as a director except
for (i) liability if a judgment or other final adjudication
establishes that his or her acts or omissions were in bad faith or
involved intentional misconduct or knowing violation of law, that
the director personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled or that the
director's acts violated Section 719 of the New York Business
Corporation Law or (ii) liability for any act or omission prior to
the adoption of Article SIXTH of the Corporation's Certificate of
Incorporation. Article EIGHTH further provides that any repeal or
modification of Article SIXTH by the Corporation's shareholders
will not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification
with respect to acts or omissions occurring prior to the repeal or
modification.
Article IX of the Corporation's by-laws provides that, to the
fullest extent permitted by law, the Corporation will indemnify any
person who was or is a director or officer of the Corporation
against all expenses incurred by such person in connection with any
claim, action, suit or proceeding that may be asserted against him
or her by reason of being or having been a director or officer of
the Corporation, provided that no indemnification may be made to or
on behalf of any director or officer if a judgment or other final
adjudication establishes that his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and
were material to the cause of action adjudicated, or that he or she
personally gained in fact a profit or other advantage to which he
or she was not legally entitled.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of the Corporation
(incorporated by reference to Exhibit 3.1 to the Corporation's
Registration Statement on Form S-1 (Registration No. 33-92230))
4.2 By-laws of the Corporation (incorporated by reference to
Exhibit 3.2 to the Corporation's Registration Statement on Form S-1
(Registration No. 33-92230))
4.3 Stock Option Plan of Registrant (incorporated by reference to
Exhibit 10.1 to the Corporation's Registration Statement on Form S-
1 (Registration No. 33-92230))
5 Opinion of Proskauer Rose Goetz & Mendelsohn LLP
23.1 Consent of Lurie, Besikof, Lapidus & Co., P.L.L.P.
23.2 Consent of Proskauer Rose Goetz & Mendelsohn LLP (included
in Exhibit 5)
24 Powers of Attorney (included on page II-5)
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 registration statement
is on Form S-3, Form S-8 or Form F-3, and the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 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
the time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(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 Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Salem,
New Hampshire, on September 18, 1996.
ACROSS DATA SYSTEMS, INC.
By: /s/ Arik Kilman
Name: Arik Kilman
Title: President and Chief
Executive Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Robert R. MacDonald and Arik
Kilman, or either of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, to act,
without the other, for him and in his name, place, and stead, in
any and all capacities, to sign a Registration Statement on Form
S-8 of Across Data Systems, Inc., and any or all amendments
(including post-effective amendments) thereto, relating to the
registration, under the Securities Act of 1933, as amended, of
shares of Common Stock of the Corporation to be issued pursuant to
the Corporation's 1995 Stock Incentive Plan and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as full to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, their substitute or substitutes may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signatures Title Date
/s/ Arik Kilman President, Chief June 30, 1996
Arik Kilman Executive Officer and
Director
/s/ Robert R. MacDonald Chairman of the Board June 29, 1996
Robert R. MacDonald Executive Officer
and Director
(Principal Executive
Officer)
/s/ Jospeh J. DiZazzo Controller, Chief June 28, 1996
Joseph J. DiZazzo Accounting Officer,
Treasurer and
Secretary (Principal
Financial Officer
and Principal
Accounting Officer)
/s/ Samuel Somech Vice President and June 30, 1996
Samuel Somech Director
/s/ Theodore Fine Director July 2, 1996
Theodore Fine
/s/ Lenny Recanati Director July 2, 1996
Lenny Recanati
/s/ Frank J. Klein Director June 30, 1996
Frank J. Klein
Exhibit 5
August 22, 1996
Across Data Systems, Inc.
382 Main Street
Salem, New Hampshire 03079
Dear Sirs:
We are acting as counsel to Across Data Systems, Inc., a
New York corporation (the "Company"), in connection with the
Registration Statement on Form S-8 with exhibits thereto (the
"Registration Statement") filed by the Company under the Securities
Act of 1933, as amended, and the rules and regulations thereunder,
relating to the registration of 900,000 shares (the "Shares") of
Common Stock, par value $.01 per share, of the Company. The Shares
are to be issued by the Company upon grant of certain stock options
(the "Options") granted and to be granted to certain employees or
directors of the Company pursuant to the Company's 1995 Stock
Incentive Plan (the "Plan").
As such counsel, we have participated in the preparation
of the Registration Statement, and have reviewed the corporate
proceedings in connection with the adoption of the Plan and have
also examined and relied upon originals or copies, certified or
otherwise authenticated to our satisfaction, of all such corporate
records, documents, agreements, and instruments relating to the
Company, and certificates of public officials and of
representatives of the Company, and have made such investigations
of law, and have discussed with representatives of the Company and
such other persons such questions of fact, as we have deemed proper
and necessary as a basis for rendering this opinion.
Based upon, and subject to, the foregoing, we are of the
opinion that the Shares are duly authorized and, upon exercise or
grant of the Options in accordance with the terms of the Plan
against payment of the exercise price therefor (as applicable), and
upon compliance with applicable securities laws, will be, assuming
no change in the applicable law or pertinent facts, validly issued,
fully paid, and non-assessable.
We hereby consent to the filing of this opinion as
Exhibit 5 to the Registration Statement. In giving the foregoing
consent, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the Securities
and Exchange Commission promulgated thereunder.
Very truly yours,
PROSKAUER ROSE GOETZ & MENDELSOHN LLP
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Across Data Systems, Inc.:
We consent to the incorporation by reference in this Registration
Statement of Across Data Systems, Inc. on Form S-8 of our report
dated January 26, 1996, relating to the consolidated balance sheets
of Across Data Systems, Inc. and subsidiaries as of December 31,
1995 and 1994, and the related consolidated statements of
operations, changes in shareholders' equity, and cash flows for
each of three years in the period ended December 31, 1995, and the
related schedule, which report appears in the December 31, 1995,
annual report on Form 10-K of Across Data Systems, Inc., as
amended.
/s/Lurie, Besikof, Lapidus & Co., LLP
LURIE, BESIKOF, LAPIDUS & CO., LLP
Minneapolis, Minnesota
August 22, 1996
