As filed with the Securities and Exchange Commission on July 10, 2002
Registration Number 333-
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)
1240 Dielman Industrial Court, St. Louis, MO 63132
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(Address of Principal Executive Offices)
MONTE ROSS
Ultradata Systems, Incorporated
1240 Dielman Industrial Court
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 Registered to be Price per Offering Registration
Registered Registered (1) Share (2) Price (2) Fee
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Common Stock, 390,002 shares $.234 $91,299 $0 (3)
$.01 par value
(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 15,475 shares previously granted under the
Plans and (ii) the product resulting from multiplying the remaining
374,527 shares by $.12, the closing price of shares of the Common Stock
on the OTC Bulletin Board on July 8, 2002.
(3) Pursuant to Rule 457(p), $8.40 is being offset against the total filing
fee due for this registration statement, which is $8.40. That amount
represents a portion of the filing fee paid by Ultradata Systems,
Incorporated upon filing, on June 16, 2000, of a Registration Statement
on Form SB-2 (File No. 333-39434). Of the 2,699,502 shares registered in
that filing, 2,633,814 remained unsold when the offering was terminated.
Accordingly, $2,107.87 of the $2,160.45 paid with that filing remained
available to be offset against future filing fees. Of that sum, $407.10
was applied to the filing fee for the Registrant's Registration Statement
on Form SB-2 (File No. 333-39434), but that Registration Statement was
subsequently withdrawn without any securities being sold. Accordingly,
the full $2,107.87 remains available to be offset against the filing fee
due for this registration statement.
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, 2001;
(b) Ultradata's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 2002;
(c) 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 owns 22,000 shares of Ultradata common stock.
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 - filed as an
exhibit to Ultradata's Registration Statement on Form S-8 (333-32098) and
incorporated herein by reference.
5 Opinion of Robert Brantl, Esq.
23.1 Consent of Weinberg & Company, P.A., 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.
REOFFER PROSPECTUS
ULTRADATA SYSTEMS, INCORPORATED
390,002 Shares of Common Stock
The shares are being offered by persons who are officers and/or
directors of Ultradata. They acquired the shares by exercising stock options
issued to them by Ultradata.
The selling shareholders intend to sell the shares into the public
market from time to time. The shareholders will negotiate with the market
makers for Ultradata common stock to determine the prices for each sale.
They expect each sale price to be near to the market price at the time of the
sale.
Ultradata's common stock is listed for trading on the OTC Bulletin
Board under the trading symbol "ULTR.OB."
Purchase of Ultradata common stock involves risk. Please see "Risk
Factors," which begins on page 2.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation
to the contrary is a criminal offense.
Ultradata Systems, Incorporated
1240 Dielman Industrial Court
St. Louis, MO 63132
314-997-2250
The date of this prospectus is July 10, 2002
TABLE OF CONTENTS
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RISK FACTORS................................................ -2-
SELLING SHAREHOLDERS........................................ -5-
OTHER AVAILABLE INFORMATION ................................ -5-
INDEMNIFICATION ............................................ -6-
RISK FACTORS
You should carefully consider the risks described below before buying
our common stock. If any of the risks described below actually occurs, that
event could cause the trading price of our common stock to decline, and you
could lose all or part of your investment.
We may not become profitable.
During 1998, 1999, 2000 and 2001 combined, we lost over $9.3 million.
Our working capital was reduced from $10 million to less than $2 million. In
the first quarter of this year, we lost an additional $128,028. Unless our
sales increase significantly, we will continue to sustain losses.
If the products that we are introducing in 2002 are not successful,
the future viability of our business will be in doubt.
In the past three years, our sales have fallen sharply, we have
significantly reduced our working capital, and the price of our common stock
is less than five percent of its price three years ago. Many people, both
inside our company and in the investment community, consider our entry into
the GPS market (through Travel*Star 24) as the test of our ability to develop
and grow as a company. If we fail to capitalize on that opportunity in 2002,
whether due to poor planning or factors beyond our control, the failure will
likely prevent us from obtaining additional capital.
Our sales are highly seasonal, which limits our growth.
Retailers continue to categorize our Road Whiz products in the "gifts"
niche. As a result, we realize the majority of our sales in the fourth
quarter, attributable to holiday shopping. During 2001, we realized over 50%
of our sales in the fourth quarter. We expect similar seasonality during
2002. The seasonality of our sales will be alleviated only if we can
convince retailers to market our Road Whiz products throughout the year or
if our new products develop significant year-round sales. This seasonality
limits our growth. It also makes our company unattractive to investors, due
to the fact that we can show positive financial results for only one quarter
each year.
Our borrowing capacity is limited, which makes it difficult for us to
finance our orders.
Our ability to finance the manufacturing needed to fill purchase
orders depends on our ability to borrow money, secured by our working capital.
In July 2001, our primary lender did not renew our $1 million credit line.
If we are unable to obtain credit in the future, it could prevent us from
filling large orders, which would have a serious negative effect on our
marketing relationships.
Our primary marketing strategy is to sell our products to mass market
retailers. This makes us dependent on a small group of large customers for
most of our sales.
Our decision in 1998 to focus our marketing efforts on mass market
retailers has increased the percentage of our revenues attributable to large
customers. In 2000 two new customers accounted for 72.4% of our sales and
four customers (including only one of the four largest in 1999) accounted for
almost 90% of our sales. In 2001 three customers accounted for over 69% of
our sales. We expect a similar pattern in 2002 and thereafter. Our dependence
on major customers means that the loss of business from one or more major
customers could adversely affect our financial results.
Several large marketing enterprises have become involved in the GPS
market. We will attempt to compete in this market with relatively meager
resources, and could be defeated by the efforts of one or more of our
competitors.
A product that performs substantially all of the functions of
Travel*Star 24 could appear on the market tomorrow, at the price we intend to
charge for Travel*Star 24 . Indeed, the success of Travel*Star 24, should it
occur, is likely to propel the introduction of competitive products into the
market. If the introduction of a comparable product were financed
aggressively, Ultradata could find itself unable to market Travel*Star 24
profitably.
We will require additional financing if Travel*Star 24 is successful,
in order to fund new orders.
If the introduction of Travel*Star 24 leads to a large demand for
that product, we may need additional funds to pay the costs of manufacturing
inventory. We will then have to either sell additional equity or finance
the orders by some other means. If we are unable to secure the necessary
financing, our efforts to establish Travel*Star 24 in the GPS market could be
severely hampered.
We have limited experience in the automotive after-market. Our lack
of experience may cause us to underestimate the challenges facing us in those
markets.
Our plan is to improve our financial performance by expanding our
operations into new markets. This strategy carries the risk of the unknown.
Many of our present customers could become customers for Travel*Star 24.
However, we expect to also distribute Travel*Star 24 through marketing
channels, such as auto parts dealers, with which we have limited experience.
We may not anticipate circumstances involving competition, marketing strategy,
regulation, or technology that prove harmful to our program for growth.
Our future could be adversely affected, if we lost the services of our
Chief Executive Officer.
Monte Ross has been the primary architect of our business strategy
and marketing program. If his services were not available to us, Ultradata
would likely be adversely affected until a replacement could be found. We
have an employment agreement with Mr. Ross, the term of which expires on
October 1, 2003. The agreement provides that Mr. Ross may not compete with
Ultradata for one year after termination of his employment.
There is no market maker providing strong support for our common
stock. As a result, the common stock is low-priced, thinly traded, and
subject to relatively wide swings in price.
For most of the past three years, with the decline in the Ultradata's
business results, interest in our common stock within the investment community
has waned. This situation was exacerbated in 2001, when our common stock was
removed from Nasdaq to the OTC Bulletin Board. Many brokerage firms will not
recommend a security that is quoted only on the OTC Bulletin Board, which
further limits interest in our common stock. Unless interest in the common
stock is sustained and a thriving market for the common stock reemerges, you
may find it impossible to sell Ultradata shares at a profit, and may find it
difficult to sell them at all.
The Convertible Notes may be converted into large numbers of shares
of common stock, which would dilute the value of your shares.
Ultradata has issued Convertible Promissory Notes with a face value
of $654,913. Ultradata pays a portion of that debt each month. However,
until Ultradata pays down the Notes in full, the principal and interest on the
Notes may be converted into common stock. The conversion price is 70% of the
average closing bid price for the five days preceding the conversion. If the
average were $.126 (as it was on July 10, 2002), the principal amount of the
Notes would be convertible into 7,425,317 shares of common stock, which would
represent 69% of the outstanding shares. This conversion cannot happen all at
once, as the Notes cannot be converted during any 90 day period into more than
28% of the trading volume for the common stock during the preceding 66 trading
days. But, over time, conversion of the Notes could theoretically convert
into 99% of the outstanding common shares, which would render your shares
virtually worthless.
SELLING SHAREHOLDERS
The table below contains information regarding the individuals who
are using this prospectus to offer common shares.
Percentage
Shares Owned Number of Shares of Class
Selling Before Shares Owned After Held After
Shareholder Position Offering (1) Offered Offering Offering
________________________________________________________________________
(1) This calculation includes all shares owned beneficially by the
shareholder, including options for shares held by the shareholder.
(2) This calculation assumes that all of the options held by all of the
selling shareholders have been exercised.
OTHER AVAILABLE INFORMATION
Ultradata Systems, Incorporated is incorporating into this prospectus
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, 1999;
(b) Ultradata's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 2000;
(c) the description of Ultradata's Common Stock contained in its
Registration Statement on Form 8-A.
Ultradata is also incorporating into this prospectus 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, until the termination of
this offering.
Upon written or oral request, Ultradata will provide to each person,
including any beneficial owner, to whom this prospectus is delivered a copy
of any and all information that has been incorporated into this prospectus by
reference. We will provide the information at no cost to the person who
requests it. Any such request should be made to Ernest Clarke, President,
Ultradata Systems, Incorporated. 1240 Dielman Industrial Court, St. Louis, MO
63132, telephone: 314-997-2250.
Ultradata files with the Securities and Exchange Commission annual,
quarterly and current reports, proxy statements and other information, which
may assist you in understanding our company. In addition, we have filed a
registration statement on Form S-8, including exhibits, with respect to the
shares to be sold in the offering.
You may read and copy the registration statement or any reports,
statements or other information that we file at the Commission's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please
call the Commission at 1-800-SEC-0330 for further information on the
operation of the Public Reference Room. Our Commission filings, including the
registration statement, are also available to you on the Commission's Web
site at http://WWW.SEC.GOV.
INDEMNIFICATION
Our certificate of incorporation provides that our directors shall be
indemnified by us to the extent authorized by Delaware law. 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, under certain circumstances. The requisite
circumstances are that the party seeking indemnification 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. However, 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.
Insofar as indemnification for liabilities under the Securities Act
of 1933 may be permitted to our directors, officers or controlling persons
pursuant to the foregoing provision or otherwise, we have been advised that
in the opinion of the SEC such indemnification is against public policy as
expressed in that Act and is, therefore, unenforceable.
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 undersigned,
thereunto duly authorized, in the City of St. Louis and the State of Missouri
on the 9th day of July, 2002.
ULTRADATA SYSTEMS, INCORPORATED
By: /s/ Monte Ross
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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 July 9, 2002.
Name Title
---------------- ---------------------------------------------
/s/ Monte Ross Chief Executive Officer, Director
---------------
Monte Ross
/s/ Ernest Clarke President, (Chief Financial and Accounting
----------------- Officer), Director
Ernest Clarke
/s/ Mark L Peterson Director
-------------------
Mark L.Peterson
------------------- Director
Donald Rattner
----------------------- Director
H. Krollfeifer, Jr.
INDEX TO EXHIBITS
5 Opinion of Robert Brantl, Esq.
23.1 Consent of Weinberg & Company, P.A., certified public accountants
* * * * *
EXHIBIT 5
ROBERT BRANTL, ESQ.
322 Fourth Street
Brooklyn, NY 11215
718-768-6045
July 9, 2002
Ultradata Systems, Incorporated
1240 Dielman Industrial Court
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 390,002 common shares which may be offered and sold by Ultradata
Systems, Incorporated under the 1994 Incentive Stock Option Plan or the
Amended and Restated 1996 Stock Option Plan (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
* * * * *
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the use in the Form S-8 Registration Statement of
Ultradata Systems, Inc. of our report for the years ended December 31, 2001 and
2000 dated February 19, 2002, relating to the financial statements of
Ultradata Systems, Inc. which appear in such Form S-8, and to the reference
to our Firm under the caption "Experts" in the Prospectus.
/s/ Weinberg & Company, P.A.
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WEINBERG & COMPANY, P.A.
Certified Public Accountants
Boca Raton, Florida
July 8, 2002