-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, P9vaPwFA1QND1UI9TFs0Z6TllCUF2AkV586iWrRrQlU/aRO2eokuiLwJB4jjGKEX C50CaLd1fWzlacCGwQgh+A== 0000950117-97-000525.txt : 19970401 0000950117-97-000525.hdr.sgml : 19970401 ACCESSION NUMBER: 0000950117-97-000525 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970331 EFFECTIVENESS DATE: 19970331 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: WILLIAM GREENBERG JR DESSERTS & CAFES INC CENTRAL INDEX KEY: 0000949721 STANDARD INDUSTRIAL CLASSIFICATION: BAKERY PRODUCTS [2050] IRS NUMBER: 133832215 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-24255 FILM NUMBER: 97571344 BUSINESS ADDRESS: STREET 1: 533 WEST 47TH ST CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 2125862826 S-8 1 WILLIAM GREENBERG S-8 To Become Effective Upon Filing Pursuant to Rule 462 As filed with the Securities and Exchange Commission on March 31, 1996 Registration No. 333-
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------------- WILLIAM GREENBERG JR. DESSERTS AND CAFES, INC. (Exact name of Registrant as specified in its charter) New York 13-3832215 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 533 W. 47th Street 10036 New York, New York (Zip Code) (Address of Principal Executive Offices) -------------------------------------------------------- BAER MARKS & UPHAM LLP SERVICES AGREEMENT (Full title of the Plan) -------------------------------------------------------- RICKEL & CO. SERVICES AGREEMENT (Full title of the Plan) -------------------------------------------------------- Stephen Fass, Executive Vice President 533 W. 47th Street New York, New York 10036 (Name and address of agent for service) (212) 586-7600 (Telephone number, including area code, of agent for service) Copies to: Samuel F. Ottensoser, Esq. Baer Marks & Upham LLP 805 Third Avenue New York, New York 10022 (212) 702-5700 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, other than securities being offered only in connection with Dividend or Interest Reinvestment Plans, check the following line: X -- CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
PROPOSED TITLE OF MAXIMUM PROPOSED MAXIMUM SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF TO BE REGISTERED REGISTERED PER SHARE(3) PRICE REGISTRATION FEE - ----------------------------------------------------------------------------------------------------- Common Stock, par value $0.001 per share 17,000 shares(1) $2.50 $42,500 $12.88 - ----------------------------------------------------------------------------------------------------- Common Stock, par value $0.001 per share 17,000 shares(2) $2.50 $42,500 $12.88 - -----------------------------------------------------------------------------------------------------
(1) Represents 17,000 shares to be issued to Baer Marks & Upham LLP pursuant to the Baer Marks & Upham LLP Services Agreement. (2) Represents 17,000 to be issuable to Rickel & Co. pursuant to the Rickel & Co. Services Agreement. (3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h)(1) on the basis of the average of the high and low prices as of March 28, 1997. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS In connection with the Registration Statement on Form S-8 (the "Registration Statement") filed by William Greenberg Jr. Desserts and Cafes, Inc. (the "Company") with the Securities and Exchange Commission on the date indicated on the cover page hereof, the following shall constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933: ITEM 1. PLAN INFORMATION. (a) General Plan Information (1) William Greenberg Jr. Desserts and Cafes, Inc. (the "Registrant" and sometimes referred to herein as the "Company") and Baer Marks & Upham LLP have entered into the Baer Marks & Upham LLP Services Agreement (the "BMU Plan"). The nature and purposes of the Plan is to compensate Baer Marks & Upham LLP for advice rendered to the registrant. (2) The Company and Rickel & Co. (Beer Marks & Upham and Rickel & Co. are collectively referred to as the "Participants"), have entered into the Rickel & Co. Services Agreement (the "Rickel Plan" and collectively with the BMU Plan, the "Plans"). The nature and purpose of the Rickel Plan is to compensate Rickel & Co. for investment banking services. (3) The Plans are not subject to any provisions of the Employee Retirement Income Security Act of 1974. (4) The name, address and telephone number of the Registrant are as set forth on the facing page of this Registration Statement. Additional information about the Plan may be obtained from the Registrant by the participant. (b) Securities to be Offered (1) Shares of Common Stock. (2) The common stock of the Registrant is registered under Section 12 of the Exchange Act. (c) Employees Who May Participate in the Plan -2- Baer Marks & Upham LLP, a consultant or advisor (an "employee" defined by General Instruction A.l(a) of Form S-8) to the Registrant is the only eligible participant (the "Participant") in the Plan. Rickel & Co., a consultant or advisor (an "employee" defined by General Instruction A.1(a) OF FORM S-8) to The Registrant is the only eligible participant in the Rickel Plan. (d) Purchase of Securities Pursuant to the Plan and Payment for Securities Offered. (1)&(2) The Participant under the Plan will be issued shares of Common Stock for advisory services rendered. (3) Contributions by the Participant are not applicable. (4) No contribution by the Registrant other than the issuance of shares is applicable. (5) Reports to the Participant as to the amount and status of its account under the Plan will not be made. (6) The shares issuable pursuant to the Plan will be newly issued shares of the Registrant. (e) There are no resale restrictions on the securities offered. (f) The Plans are not qualified under Section 401(a) of the Internal Revenue Code and the Participant will recognize ordinary income at the time of the issuance of their respective shares measured by the fair market value of the Registrant's common stock which is acquired by the participants. Additionally, the Participant's will have income in the form of capital gains if their respective shares are sold at a price in excess of the exercise price. (g) Investment of Funds Not Applicable (h) Withdrawal from the Plans; Assignment of Interest (1) The Participants may withdraw from the Plans at any time upon written notice to the Registrant. (2) The Participants' interests in the Plans may not be assigned. 3 (i) Forfeitures and Penalties There are no provisions for forfeiture or penalties under the Plans except that termination of the Plans terminates the ability to receive shares thereunder. (j) Charges and Deductions and Liens Therefor There are no charges and deductions that may be made against the Participant's interest in the Plan. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION Registrant shall provide to the Participants, without charge, upon written or oral requests, the documents incorporated herein by reference in Item 3 of Part II of this Registration Statement. The Registrant also shall provide to the Participants, without charge, upon written or oral request, all other documents required to be delivered to the Participants pursuant to Rule 428(b). Any and all such requests shall be directed to the Registrant at 533 W. 47th Street, New York, New York 10036, telephone number 212-586-7600. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents, which have been filed by William Greenberg Jr. Desserts and Cafes, Inc., a New York corporation (the "Registrant"), with the Securities and Exchange Commission (the "Commission"), are incorporated herein by reference: (a) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1995. (b) The Registrant's Quarterly Reports on Form 10-QSB for each of the three month periods ended, respectively, March 31, 1996, June 30, 1996 and September 30, 1996. (c) The description of the Registrant's Common Stock, par value $0.001 per share, which is contained in the Company's Registration Statement on Form 8-A filed on September 28, 1995 under Section 12 of the Securities Exchange Act of 1934, as amended, including any amendment or report filed for the purpose of updating such description. In addition, all documents filed subsequent to the date of this Registration Statement by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange -1- Act of 1934, as amended, 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, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for 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. ITEM 4. DESCRIPTION OF SECURITIES. The securities offered hereby are registered under Section 12 of the Securities Exchange Act of 1934. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Baer Marks & Upham LLP, counsel to the Registrant, whose opinion is attached as Exhibit 5.1 hereto is the Participant in the Plan and may receive up to 17,000 shares thereunder. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The New York Business Corporation Law ("NYBCL"), in general, allows corporations to indemnify their officers and directors against any judgment, fine, settlement or reasonable expenses incurred in any non-derivative civil or criminal action, or against any settlement or reasonable expenses in any derivative civil action, if the officer or director acted in good faith and for a purpose that person reasonably believed to be in, or not opposed to, the best interests of the corporation. In the case of a criminal action, the officer or director must have had no reasonable cause to believe that that person's conduct was unlawful. Partial indemnification is allowed in cases where the officer or director was partially successful in defeating the claim. The NYBCL establishes procedures for determining whether the standard of conduct has been met in the particular case, for timely notification of shareholders, for prepayment of expenses and for payment pursuant to a court order or as authorized by disinterested directors or the shareholders. The NYBCL also provides that it is not exclusive of any other rights to which an officer or director may be entitled under the certificate of incorporation or by-laws or pursuant to an agreement, resolution of shareholders or resolution of directors which are authorized by the certificate of incorporation or by-laws; provided that no indemnification may be made if a judgment or other final adjudication adverse to the officer or director establishes that that person's acts were committed in bad faith or were the result of active and deliberate dishonesty and II-2 were material to the cause of action so adjudicated, or that that person personally gained in fact a financial profit or other advantage to which that person was not legally entitled. The Registrant's Restated Certificate of Incorporation and Amended and Restated By-Laws provide that the Registrant shall indemnify its officers and directors to the fullest extent permitted by New York law. The Registrant has entered into indemnification agreements with each of its directors and executive officers that provide the maximum indemnity allowed to directors and executive officers by the NYBCL and the Registrant's Restated Certificate of Incorporation, subject to certain exceptions, as well as certain additional procedural protections. In addition, the indemnification agreements provide generally that the Registrant will advance expenses incurred by directors and executive officers in any action or proceeding as to which they may be entitled to indemnification, subject to certain exceptions. The Registrant maintains directors and officers liability and company reimbursement insurance which, among other things (i) provides for payment on behalf of its officers and directors against loss as defined in the policy stemming from acts committed by directors and officers in their capacity as such, and (ii) provides for payment on behalf of the Registrant against such loss but only when the Registrant shall be required or permitted to indemnify directors or officers for such loss pursuant to statutory or common law or pursuant to duly effective certificate of incorporation or by-law provisions. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. Exhibit Number - ------ 5.1 Opinion of Baer Marks & Upham LLP. 23.1 Consent of Weinick, Sanders & Co. LLP. 23.2 Consent of Baer Marks & Upham LLP (contained in Exhibit 5.1). 24.1 Power of Attorney (included on signature page of this Registration Statement). II-3 ITEM 9. UNDERTAKINGS. 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: (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; (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 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 this 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; (5) To deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnish pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and where interim financial information required to be presented by Article 3 of Regulation SX are not set forth in the prospectus, to deliver or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information; and (6) 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. II-4 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, hereunto duly authorized, in the City of New York, State of New York, on the 28th day of March, 1997. WILLIAM GREENBERG JR. DESSERTS AND CAFES, INC. By: /s/ PHILIP GRABOW ---------------------------------------------- Philip Grabow President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Philip Grabow his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes, 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 below by the following persons in the capacities and on the dates indicated.
Signature Title Date - ---------- ----- ----- /s/ Philip Grabow President and Chief Executive Officer, March 28, 1997 - --------------------- Director (Principal Executive Officer) Philip Grabow /s/ Stephen Fass Executive Vice President, Chief Operating March 28, 1997 - --------------------- Officer and Director Stephen Fass /s/ Maria Marfuggi Chairman of the Board, Executive Vice March 28, 1997 - --------------------- President and Secretary (Principal Maria Marfuggi Financial Officer)
II-5 FORM S-8 REGISTRATION STATEMENT ITEM 8 EXHIBITS WILLIAM GREENBERG JR. DESSERTS AND CAFES, INC. EXHIBIT INDEX Exhibit Number - ------- 5.1 Opinion of Baer Marks & Upham LLP. 23.1 Consent of Weinick, Sanders & Co. LLP. 23.2 Consent of Baer Marks & Upham LLP (contained in Exhibit 5.1). 24.1 Power of Attorney (included on signature page of this Registration Statement). EX-5 2 EXHIBIT 5.1 [BAER MARKS & UPHAM LLP LETTERHEAD LOGO] March 28, 1997 William Greenberg Jr. Desserts and Cafes, Inc. 533 W. 47th Street New York, New York 10036 Ladies and Gentlemen: We have acted as counsel to William Greenberg Jr. Desserts and Cafes, Inc., a New York corporation (the "Company"), in connection with a Registration Statement on Form S-8 (the "Registration Statement") being filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to the offering of 17,000 shares (the "Shares") of common stock, $0.001 par value per share (the "Common Stock"), issuable to Baer Marks & Upham LLP pursuant to the Baer Marks & Upham LLP Services Agreement (the "BMU Plan") and 17,000 Shares issuable to Rickel & Co. pursuant to the Rickel & Co. Services Agreement (the "Rickel Plan" and collectively with the BMU Plan the "Plan"). In connection with the foregoing, we have examined originals or copies, satisfactory to us, of all such corporate records and of all such agreements, certificates and other documents as we have deemed relevant and necessary as a basis for the opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the original documents of all documents submitted to us as copies. As to any facts material to such opinion, we have, to the extent that relevant facts were not independently established by us, relied on certificates of public officials and certificates of officers or other representatives of the Company. Based upon and subject to the foregoing, we are of the opinion that, when issued and paid for in accordance with the Plan, the Shares will be validly issued, fully paid and, except as otherwise provided in Section 630 of New York's Business Corporation Law, non-assessable Shares of Common Stock. We are members of the bar of the State of New York and are not licensed or admitted to practice law in any other jurisdiction. Accordingly, we express no opinion with respect to the laws of any jurisdiction other than the State of New York and the federal laws of the United States. We hereby consent to the use of our opinion as herein set forth as an exhibit to the Registration Statement. In giving such consent, we do not thereby concede 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 thereunder. Very truly yours, /s/ Baer Marks & Upham II-3 EX-23 3 EXHIBIT 23.1 [WEINICK, SANDERS & CO. LLP LETTERHEAD LOGO] CONSENT OF INDEPENDENT AUDITORS We hereby consent to the incorporation by reference in the registration statement of William Greenberg Jr. Desserts and Cafes, Inc. on Form S-8 filed March 28, 1997 of our report dated March 9, 1996 (except as to a portion of Note 9, as to which the date is April 15, 1996) appearing in The Annual Report on Form 10-KSB of William Greenberg Jr. Desserts and Cafes, Inc. for the fiscal year ended December 31, 1995. Yours truly, /s/ Weinick. Sanders & Co. LLP ------------------------------ WEINICK, SANDERS & CO. LLP Certified Public Accountants New York, New York March 28, 1997 -----END PRIVACY-ENHANCED MESSAGE-----