As filed with the Securities and Exchange Commission on April 27, 2006
Registration No. 333-132766
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AUTOINFO, INC.
(Exact name of Registrant as specified in its charter)
Delaware 4731 13-2867481
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
AutoInfo, Inc.
6413 Congress Avenue, Suite 260
Boca Raton, Florida 33487
(561) 988-9456
(561) 994-8033 Facsimile
(Address, including zip code, and telephone number, including area code, of
Registrant's executive offices)
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Harry Wachtel
Chief Executive Officer
6413 Congress Avenue, Suite 260
Boca Raton, Florida 33487
(561) 988-9456
(561) 994-8033 Facsimile
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Copy to:
Kenneth S. Rose, Esq.
Morse, Zelnick, Rose & Lander, LLP
405 Park Avenue
New York, New York 10022
(212) 838-5030
(212) 838-9190 Facsimile
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended (the "Securities Act"), check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Amount To Be Offering Price Per Aggregate Offering Amount of
Registered Registered Share (1) Price (1) Registration Fee
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Common stock, $.001
par value 5,383,333(2) $0.76 $4,091,333 $437.77*
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* Previously paid.
(1) In accordance with Rule 457(c), the aggregate offering price per share is
estimated solely for purposes of calculating the Registration fee, using
the average of the high and low sales price reported by the OTC bulletin
board for the common stock on March 27, 2006.
(2) In accordance with Rule 429, the number of shares included in this
Registration Statement includes 4,383,333 shares of the registrant's
common stock beneficially owned by the selling shareholders herein which
are covered by a Registration Statement on Form S-2 (File No. 333-123710)
declared effective by the Commission on June 29, 2005.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following are the expenses of the issuance and distribution of the
securities being registered, other than underwriting commissions and expenses,
all of which will be paid by the Company. Other than the SEC registration fee
all of such expenses are estimated.
Registration fee.................................................. $ 438.00
Printing and Edgar Conversion expenses............................ $ 1,500.00
Accounting fees and expenses...................................... $ 1,000.00
Legal fees and expenses........................................... $ 10,000.00
Transfer agent and registrar fees and expenses.................... $ 00.00
Miscellaneous..................................................... $ 62.00
Total.................................................... $ 13,000.00
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Item 14. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law grants us the power to
indemnify our directors and officers against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with
specified actions, suits or proceedings, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation - a
"derivative action"), if they acted in good faith and in a manner they
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 their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification in which the person seeking
indemnification has been found liable to the corporation. The statute provides
that it is not exclusive of other indemnification that may be granted by a
corporation's charter, bylaws, disinterested director vote, stockholder vote,
agreement or otherwise.
Our Certificate of Incorporation provides that we indemnify and hold
harmless each of our directors and officers to the fullest extent authorized by
the Delaware General Corporation Law, against all expense, liability and loss
(including attorney's fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith.
Our Certificate of Incorporation also provides that a director will not be
personally liable to us or to our stockholders for monetary damages for breach
of the fiduciary duty of care as a director. This provision does not eliminate
or limit the liability of a director:
o for breach of his or her duty of loyalty to us or to our
stockholders;
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o under Section 174 of the Delaware General Corporation Law (relating
to unlawful payments or dividends or unlawful stock repurchases or
redemptions); or
o for any improper benefit.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons pursuant to
our Certificate of Incorporation, Bylaws and the Delaware General Corporation
Law, we have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy and is, therefore,
unenforceable.
Item 15. Recent Sales of Unregistered Securities.
On January 21, 2004, we closed a private placement pursuant to which we
issued a total of 1,333,333 shares of our common stock, par value $0.001 per
share (common stock"), to an accredited investor. We received $442,201.76 in
consideration for the issuance of the securities. The securities were issued
pursuant to the exemption from registration provided by Rule 506 of Regulation
D, promulgated under the Securities Act of 1933, as amended. The investor
received current information about our company and had the opportunity to ask
questions about our company. The investor purchased the securities for
investment purposes and the securities they received were marked with the
appropriate restrictive legend.
On January 21, 2004, we issued a total of 2,300,000 shares of our common
stock upon conversion of $575,000 of outstanding 12% convertible debentures.
The foregoing securities were issued in reliance upon the exemption from
the registration requirements of the Securities Act of 1933, as amended,
provided in Section 4(2) thereof, as a transaction by an issuer not involving a
public offering. We reasonably believed that the purchaser had such knowledge
and experience in financial and business matters to be capable of evaluating the
merits and risks of the investment, each purchaser represented an intention to
acquire the securities for investment only and not with a view to distribution
thereof and appropriate legends were affixed to the stock certificates or
warrants. No commissions were paid in connection with such issuances.
Item 16. Exhibits and Financial Statement Schedules.
Exhibit
No. Description
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No. 3A Certificate of Incorporation of the Company, as amended. (9)
No. 3B Amended and Restated By-Laws of the Company. (5)
No. 4A Specimen Stock Certificate. (2)
No. 5A Opinion of Morse, Zelnick, Rose and Lander, LLP
No. 9A Irrevocable Proxies, dated June 1, 2001, appointing Harry
Wachtel as proxy of each of William Wunderlich and Mark Weiss
with respect to 750,000 and 1,000,000 shares of AutoInfo
common stock then respectively owned by each of them. (13)
No. 10A 1986 Stock Option Plan. (1)
No. 10B 1989 Stock Option Plan. (3)
No. 10C 1992 Stock Option Plan. (4)
No. 10D 1997 Stock Option Plan. (6)
No. 10E 1997 Non-Employee Stock Option Plan. (6)
No. 10F 1999 Stock Option Plan. (8)
No. 10G Form of Agreement and Plan of Reorganization among AutoInfo,
Inc. on the one hand, and Sunteck Transport Co., Inc., et al.,
on the other hand, dated June 22, 2000. (7)
No. 10H Form of Debenture dated December 6, 2000. (7)
No. 10I Employment Agreement between AutoInfo, Inc. and Harry M.
Wachtel dated as of December 7, 2000. (9)
No. 10J Employment Agreement between AutoInfo, Inc. and William
Wunderlich dated December 7, 2000. (9)
No. 10K Amendment to Employment Agreement between AutoInfo, Inc. and
Harry M. Wachtel dated as of November 16, 2005. (12)
No. 10L Amendment to Employment Agreement between AutoInfo, Inc. and
William Wunderlich dated November 16, 2005. (12)
No. 10M Stock Purchase Agreement between AutoInfo, Inc and Kinderhook
Partners, LP dated January 21, 2004.(11)
No. 10N Registration Rights Agreement between AutoInfo, Inc. and
Kinderhook Partners, LP, et al, dated October 4, 2004.(11)
No. 10O First Amendment to Revolving Credit and Security Agreement
between Wachovia Bank and AutoInfo, Inc., et al (11)
No. 10P Registration Rights Agreement between AutoInfo, Inc. and
Kinderhook Partners, LP, et al, dated January 5, 2006.(12)
No. 10Q Second Amendment to Revolving Credit and Security Agreement
between Wachovia Bank and AutoInfo, Inc., et al (12)
No. 21A Subsidiaries of the Registrant. (11)
No. 23A Consent of Dworken, Hillman, LaMorte & Sterczala, P.C.,
independent registered public accounting firm.*
No. 23B Consent of Morse, Zelnick, Rose & Lander, LLP (included in
Exhibit 5.1)*
No. 24A Power of Attorney (included in signature page)*
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*Previously filed as an Exhibit to this Registration Statement.
(1) This Exhibit was filed as an Exhibit to our definitive proxy statement
dated October 20, 1986 and is incorporated herein by reference.
(2) This Exhibit was filed as Exhibit to our Registration Statement on Form
S-1 (File No. 33-15465) and is incorporated herein by reference.
(3) This Exhibit was filed as an Exhibit to our definitive proxy statement
dated September 25, 1989 and is incorporated herein by reference.
(4) This Exhibit was filed as an Exhibit our definitive proxy statement dated
October 2, 1992 and is incorporated herein by reference.
(5) This Exhibit was filed as an Exhibit to our Current Report on Form 8-K
dated March 30, 1995 and is incorporated herein by reference.
(6) This Exhibit was filed as an Exhibit to our Annual Report on Form 10-K for
the year ended December 31, 1997 and is incorporated herein by reference.
(7) This Exhibit was filed as an Exhibit to our Current Report on Form 8-K
dated December 6, 2000 and is incorporated herein by reference.
(8) This Exhibit was filed as an Exhibit to our Annual Report on Form 10-K for
the year ended December 31, 1999 and is incorporated herein by reference.
(9) This Exhibit was filed as an Exhibit to our Annual Report on Form 10-KSB
for the year ended December 31, 2000 and is incorporated herein by
reference.
(10) This Exhibit was filed as an Exhibit to our Annual Report on Form 10-KSB
for the year ended December 31, 2003 and is incorporated herein by
reference.
(11) This Exhibit was filed as an Exhibit to our Annual Report on Form 10-KSB
for the year ended December 31, 2004 and is incorporated herein by
reference.
(12) This Exhibit was filed as an Exhibit to our Annual Report on Form 10-K for
the year ended December 31, 2005 and is incorporated herein by reference.
(13) This Exhibit was filed as Exhibit to our Registration Statement on Form
S-2 (File No. 333-123710) and is incorporated herein by reference.
Item 17. 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 to:
(i) include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) 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; and
(iii) include any additional or changed material information
with respect to the plan of distribution disclosed in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
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.
B. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or otherwise, the small
business issuer has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the small
business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the small business
issuer will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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-1 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, there unto duly
authorized, in the City of Boca Raton, State of Florida on April 26, 2006.
AUTOINFO, INC.
By: /s/ Harry M. Wachtel
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Harry M. Wachtel, Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933, as
amended, the following persons have signed this Registration Statement in the
capacities indicated on the date set forth above.
Signature Title
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/s/ Harry M. Wachtel Chief Executive Officer, President and Director
--------------------------------------- (principal executive officer)
Harry M. Wachtel
/s/ William W. Wunderlich Chief Financial and Accounting Officer
--------------------------------------- (principal financial officer)
William W. Wunderlich
*Mark Weiss Director
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Mark Weiss
*Peter C. Einselen Director
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Peter C. Einselen
*Thomas C. Roberston Director
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Thomas C. Roberston
/s/ Harry Wachtel
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* By: Harry Wachtel, Attorney in fact