Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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Fresh Brands, Inc.
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(Exact name of registrant as specified in its charter)
Wisconsin 39-2019963
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2215 Union Avenue
Sheboygan, Wisconsin 53081
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(Address of principal executive offices) (Zip Code)
Fresh Brands, Inc. 2001 Nonemployee Director Stock Option Plan
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(Full title of the plan)
Elwood F. Winn Copy to:
Fresh Brands, Inc.
2215 Union Avenue Steven R. Barth
Sheboygan, Wisconsin 53081 Foley & Lardner
(920) 457-4433 777 East Wisconsin Avenue
(Name, address and telephone number, including Milwaukee, Wisconsin 53202
area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Aggregate Offering Registration
Registered Registered Per Share Price Fee
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Common Stock, 200,000 $14.75(1) $2,950,000(1) $737.50
$0.05 par value shares
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(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely
for the purpose of calculating the registration fee based on the average of
the high and low prices for Fresh Brands, Inc. Common Stock as reported on
the Nasdaq Stock Market on August 15, 2001.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part
I are not required to be filed with the Securities and Exchange Commission (the
"Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by the Registrant
are hereby incorporated herein by reference:
(a) Registrant's Registration Statement on Form S-4 (Registration No.
333-56222) filed on February 26, 2001 and amended on April 4, 2001, April 24,
2001 and April 27, 2001.
(b) The description of the Registrant's Common Stock contained in Item
1 of the Registrant's Registration Statement on Form 8-A, dated May 31, 2001
(and, consequently, under the section entitled "Approval of Agreement and Plan
of Share Exchange--Description of Fresh Brands Capital Stock" in the
Registrant's Registration Statement on Form S-4 (Registration No. 333-56222)
filed on February 26, 2001, and any amendments or reports filed by the
Registrant for the purpose of updating such description), and any amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant or the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the date of filing of this Registration Statement and prior to such
time as the Registrant files a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby 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 filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Steven R. Barth, a director of the Registrant, is a partner at the law
firm of Foley & Lardner, which provides legal services to the Registrant.
Item 6. Indemnification of Directors and Officers.
Under the Bylaws of Fresh Brands and the Wisconsin Business
Corporation Law ("WBCL"), directors and officers of Fresh Brands are entitled to
mandatory indemnification from Fresh Brands against certain liabilities and
expenses (a) to the extent such officers or directors are successful in the
defense of a proceeding, and (b) in proceedings in which the director or officer
is not successful in the defense thereof, unless it is determined the director
or officer breached or failed to perform such person's duties to Fresh Brands
and such breach or failure constituted: (i) a willful failure to deal fairly
with Fresh Brands or its shareholders in connection with a matter in which the
director or officer had a material conflict of interest; (ii) a violation of
criminal law, unless the director or officer had reasonable cause to believe his
or her conduct was lawful or had no reasonable cause to believe his or her
conduct was
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unlawful; (iii) a transaction from which the director or officer derived an
improper personal profit; or (iv) willful misconduct. The WBCL specifically
states that it is the public policy of Wisconsin to require or permit
indemnification, allowance of expenses and insurance in connection with a
proceeding involving securities regulation, as described therein, to the extent
required or permitted as described above.
Under the WBCL, unless the Articles of Incorporation provide
otherwise, directors and officers of Fresh Brands are not subject to personal
liability to Fresh Brands, it shareholders, or any person asserting rights on
behalf thereof for certain breaches or failures to perform any duty resulting
solely from their status as directors or officers, unless the person asserting
liability proves that the breach or failure constituted: (i) a willful failure
to deal fairly with the corporation or its shareholders in connection with a
matter in which the director had a material conflict of interest, (ii) a
violation of criminal law, unless the director had reasonable cause to believe
his or her conduct was lawful or no reasonable cause to believe that his or her
conduct was unlawful, or (iii) a transaction from which the director derived an
improper personal profit, or (iv) willful misconduct. The Articles of
Incorporation do not limit a director's immunity provided by the WBCL. As a
result of such provisions, shareholders may be unable to recover monetary
damages against directors or officers for actions taken by them which constitute
negligence or gross negligence or which are in violation of their fiduciary
duties, although it may be possible to obtain injunctive or other equity relief
with respect to such actions. If equitable remedies are found not to be
available to shareholders in any particular case, shareholders may not have any
effective remedy against the challenged conduct.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed (except where otherwise indicated) as
part of this Registration Statement:
Exhibit No. Description
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4.1 Fresh Brands, Inc. 2001 Nonemployee Director Stock Option
Plan.
4.2 Amended and Restated Articles of Incorporation of the
Registrant. [Incorporated by reference to Exhibit 3.1 (and,
consequently, Appendix E to the Registrant's proxy
statement/prospectus ) to Amendment No. 3 to the
Registrant's Registration Statement on Form S-4
(Registration No. 333-56222).]
4.3 By-laws of the Registrant. [Incorporated by reference to
Exhibit 3.2 (and, consequently, Appendix E to the
Registrant's proxy statement/prospectus ) to Amendment No. 3
to the Registrant's Registration Statement on Form S-4
(Registration No. 333-56222).]
5 Opinion of Foley & Lardner.
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23.1 Consent of Foley & Lardner (contained in opinion of Foley &
Lardner filed as Exhibit 5 hereto).
24 Power of Attorney (set forth on the signature page to this
Registration Statement).
Item 9. Undertakings.
The undersigned registrant hereby undertakes as follows:
(a) 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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 sentences (a)(i) and (a)(ii) above 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 section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) 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.
(c) 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;
(d) That, for the purpose 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 (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 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.
(e) 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
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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 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.
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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, thereunto duly
authorized, in the City of Sheboygan, Wisconsin on August 20, 2001.
FRESH BRANDS, INC.
/s/ Elwood F. Winn
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Elwood F. Winn
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Fresh Brands, Inc.
hereby severally constitute and appoint Elwood F. Winn, Armand C. Go and Steven
R. Barth, and each of them singly, our true and lawful attorneys-in-fact, with
full power to them in any and all capacities, to sign any and all amendments to
this Registration Statement on Form S-8 (including any post-effective amendments
thereto), and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact may 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, constituting a majority of the
Registrant's Board of Directors:
SIGNATURE TITLE DATE
/s/ Elwood F. Winn President, Chief Executive Officer August 20, 2001
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Elwood F. Winn Officer)
/s/ Armand C. Go Vice President and Secretary August 20, 2001
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Armand C. Go Principal Accounting Officer)
/s/ Walter G. Winding Director August 20, 2001
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Walter G. Winding
/s/ Michael R. Houser Director August 20, 2001
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Michael R. Houser
/s/ William K. Jacobson Director August 20, 2001
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William K. Jacobson
/s/ Steven R. Barth Director August 20, 2001
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Steven R. Barth
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