AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 26, 1997
REGISTRATION STATEMENT NO. 333-7202
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3 TO FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
INTERCORP EXCELLE INC.
(Name of small business issuer as specified in its charter)
------------------------------
ONTARIO, CANADA N/A 2030
(State or other jurisdiction of (IRS Employer I.D. No.) (Primary Standard Industrial
Incorporation or Organization) Classification Code No.)
1880 ORMONT DRIVE
TORONTO, ONTARIO
CANADA M9L 2V4
(416) 744-2124
(Address and Telephone Number of Registrant's Principal Executive Offices)
------------------------------
ARNOLD UNGER, CHIEF EXECUTIVE OFFICER
INTERCORP EXCELLE INC.
1880 ORMONT DRIVE
TORONTO, ONTARIO
CANADA M9L 2V4
(416) 744-2124
(Name, address and telephone number of agent for service)
------------------------------
COPIES TO:
JAY M. KAPLOWITZ, ESQ. GREGORY SICHENZIA, ESQ.
ARTHUR S. MARCUS, ESQ. SINGER ZAMANSKY, LLP
GERSTEN, SAVAGE, KAPLOWITZ, 40 Exchange Place
FREDERICKS & CURTIN, LLP 20th Floor
101 East 52nd Street New York, New York 10005
New York, New York 10022 (212) 809-8550
(212) 752-9700
------------------------------
Approximate date of proposed sale to the public: As soon as practicable
after the effective date of this registration statement.
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, check the following box: /X/
----------------------------------------
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 the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
----------------------------------------
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT BEING PRICE PER OFFERING REGISTRATION
SECURITIES BEING REGISTERED REGISTERED SECURITY(1) PRICE(1) FEE
Common Stock, no par value................................................ 1,224,750(2) $ 5.00 $6,123,750 $1,855.68
Redeemable Common Stock Purchase Warrants................................. 1,224,750(3)(4) .10 122,475 37.11
Common Stock, no par value................................................ 1,224,750(3)(4)(5) 6.00 7,348,500 2,226.82
Underwriters' Warrant..................................................... 106,500 .0001 10 0.00
Common Stock, no par value................................................ 106,500 8.25 878,625 266.25
Redeemable Common Stock Purchase Warrants................................. 106,500(6) .165 17,573 5.33
Common Stock, no par value................................................ 106,500(6)(7) 6.00 639,000 193.64
Total..................................................................... $4,584.83
Previously paid........................................................... $4,584.83
Total owed................................................................ $ 0.00
- ------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(2) Includes up to 159,750 shares of Common Stock issuable upon exercise of the
Underwriters' over-allotment option.
(3) Includes up to 159,750 Redeemable Common Stock Purchase Warrants (the
"Warrants") issuable upon the exercise of the Underwriters' over-allotment
option.
(4) This Registration Statement also covers any additional shares of Common
Stock which may become issuable by virtue of the anti-dilutive provisions of
the Warrants and the Underwriters' Warrant. No additional registration fee
is included for these shares.
(5) Represents shares of Common Stock issuable upon exercise of the Warrants
offered pursuant to this Registration Statement.
(6) Reserved for issuance upon exercise of the Underwriters' Warrant together
with such indeterminate number of Warrants and/or Common Stock as may be
issuable pursuant to anti-dilution provisions under the Underwriters'
Warrant or the Warrants.
(7) Reserved for issuance upon exercise of the Warrants obtained upon exercise
of the Underwriters' Warrant.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CROSS REFERENCE SHEET SHOWING LOCATION
IN PROSPECTUS OF INFORMATION REQUIRED BY ITEMS OF FORM SB-2
REGISTRATION STATEMENT ITEM AND HEADING PROSPECTUS CAPTION
- ----------------------------------------------------------------- ------------------------------------------------------
1. Front of Registration Statement and Outside Front
Cover Page of Prospectus............................ Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus.......................................... Inside Front and Outside Back Cover Pages
3. Summary Information and Risk Factors.................. Prospectus Summary; Risk Factors
4. Use of Proceeds....................................... Use of Proceeds
5. Determination of Offering Price....................... Cover Page; Underwriting
6. Dilution.............................................. Dilution
7. Selling Security Holders.............................. Principal Stockholders and Selling Securityholders
8. Plan of Distribution.................................. Cover Page; Underwriting
9. Legal Proceedings..................................... Business
10. Directors, Executive Officers, Promoters and Control
Persons............................................. Management
11. Security Ownership of Certain Beneficial Owners and
Management.......................................... Principal Stockholders and Selling Securityholders
12. Description of Securities............................. Description of Securities
13. Interest of Named Experts and Counsel................. Legal Matters; Experts
14. Disclosure of Commission Position on Indemnification
for Securities Act Liabilities...................... Indemnification for Securities Act Liabilities
15. Organization Within Last 5 Years...................... Prospectus Summary; Business
16. Description of Business............................... Prospectus Summary; Business
17. Management's Discussion and Analysis or Plan of
Operations.......................................... Management's Discussion and Analysis of Financial
Condition and Results of Operations
18. Description of Property............................... Business
19. Certain Relationships and Related Transactions........ Certain Transactions
20. Market for Common Equity and Related Stockholder
Matters............................................. Description of Securities; Risk Factors
21. Executive Compensation................................ Management
22. Financial Statements.................................. Financial Statements
23. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure................. Not Applicable
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The by-laws of the Company provide that the Company shall indemnify
directors and officers of the Company. The pertinent section of Canadian law is
set forth below in full. In addition, upon effectiveness of this registration
statement, management intends to obtain officers and directors liability
insurance.
See the second and third paragraphs of Item 28 below for information
regarding the position of the Securities and Exchange Commission (the
"Commission") with respect to the effect of any indemnification for liabilities
arising under the Securities Act of 1933, as amended (the "Securities Act").
Section 136 of the Canadian Business Corporation Act provides as follows:
(1) INDEMNIFICATION OF DIRECTORS-A corporation may indemnify a director
or officer of the corporation, a former director or officer of the
corporation or a person who acts or acted at the corporation's request as a
director or officer of a body corporate of which the corporation is or was a
shareholder or creditor, and his or her heirs and legal representatives,
against all costs, charges and expenses, including an amount paid to settle
an action or satisfy a judgment, reasonably incurred by him or her in
respect of any civil, criminal or administrative action or proceeding to
which he or she is a party by reason of being or having been a director or
officer of such corporation or body corporate, if,
(a) he or she acted honestly and in good faith with a view to the
best interests of the corporation; and
(b) in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, he or she has reasonable grounds
for believing that his or her conduct was lawful.
(2) INDEM.-A corporation may, with the approval of the court, indemnify
a person referred to in subsection (1) in respect of an action by or behalf
of the corporation or body corporate to procure a judgment n its favor, to
which the person is made a party by reason of being or having been a
director or an officer of the corporation or body corporate, against all
costs, charges and expenses reasonably incurred by the person in connection
with such action if he or she fulfills the conditions set out in clauses
(1)(a) and (b).
(3) IDEM.-Despite anything in this section, a person referred to in
subsection (1) is entitled to indemnity from the corporation in respect of
all costs, charges and expenses reasonably incurred by him in connection
with the defense of any civil, criminal or administrative action or
proceeding to which he or she is made a party by reason of being or having
been a director or officer of the corporation or body corporate, if the
person seeking indemnity;
(a) was substantially successful on the merits in his or her defense
of the action or proceeding; and
(b) fulfills the conditions set out in clauses (1)(a) and (b).
(4) LIABILITY INSURANCE-A corporation may purchase and maintain
insurance for the benefit of any person referred to in subsection (1)
against any liability incurred by the person,
(a) in his or her capacity as a director or officer of the
corporation, except where the liability relates to the person's failure
to act honestly and in good faith with a view to the best interests of
the corporation; or
II-1
(b) in his or her capacity as a director or officer of another body
corporate where the person acts or acted in that capacity at the
corporation's request, except where the liability relates to the person's
failure to act honestly and in good faith with a view to the best
interests of the body corporate.
(5) APPLICATION TO COURT-A Corporation or a person referred to in
subsection 91) may apply to the court for an order approving an indemnity
under this section and the court may so order and make any further order it
thinks fit.
(6) IDEM-Upon application under subsection (5), the court may order
notice to be given to any interested person and such person is entitled to
appear and be heard in person or by counsel.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is a statement of the estimated expenses to be paid by the
Company in connection with the issuance and distribution of the securities being
registered:
SEC Registration Fee........................................................... $ 4,333.94
NASD Filing Fee................................................................ 1,897.70
Nasdaq Listing Fees*........................................................... 15,000.00
BSE Listing Fees*.............................................................. 10,000.00
Printing Engraving Expenses*................................................... 75,000.00
Legal Fees and Expenses*....................................................... 125,000.00
Accounting Fees and Expenses*.................................................. 60,000.00
Blue Sky Fees and Expenses*.................................................... 17,500.00
Transfer Agent and Registrar Fees and Expenses*................................ 3,500.00
Non-accountable Expense Allowance.............................................. 153,195.00
Miscellaneous*................................................................. 9,573.36
Total.................................................................... $475,000.00
- ------------------------
*estimate
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
In the past three years the Company has issued securities to a limited
number of persons as described below. Except as indicated, there were no
underwriters involved in the transactions and there were no underwriting
discounts or commissions paid in connection therewith.
In April 1997, the Company issued an aggregate of 2,900,000 shares of its
Common stock to Arnold Unger, Renee Unger, Lori Gutmann, Alysee Unger and Karen
Unger in exchange for all of the outstanding capital stock of Kalmath
Investments Limited and Intercorp Foods Ltd. The issuance was exempt from
registration under Section 4(2) of the Act.
In May 1997, the Company sold to 26 investors an aggregate of $625,000 12%
promissory notes, 175,000 shares of Common Stock and 175,000 redeemable common
stock purchase warrants. The warrants are exercisable to purchase 175,000 shares
of Common Stock at $3.75 per share or are exchangeable for warrants identical to
the warrants being offered by the Company in the Offering. The Underwriters
placed the securities and received 10% placement agent fees. The sale of
securities was exempt from registration pursuant to Rule 506 under Section 4(2)
of the Act.
In May 1997, the Company granted options to purchase an aggregate 200,000
shares of Common Stock under its 1997 Stock Option Plan to five of its officers
and directors. The transaction was exempt from registration under Section 4(2)
of the Act.
II-2
ITEM 27. EXHIBITS
1.1 Form of Underwriting Agreement(1)
1.2 Form of Selected Dealers Agreement(1)
1.3 Form of Agreement Among Underwriters(1)
3.1 Articles of Incorporation of the Registrant(3)
3.2 By-laws of Registrant(2)
4.1 Form of Underwriters' Warrant(1)
4.2 Form of Warrant Agreement(1)
4.3 Specimen Common Stock Certificate(3)
4.4 Specimen Redeemable Common Stock Purchase Warrant Certificate(3)
5.1 Opinion of Wildeboer Rand Thomson Apps & Dellelce(3)
10.1 Form of Consulting Agreement with Underwriters(1)
10.2 1997 Stock Option Plan(2)
10.3 Lease of Company's Facilities(3)
10.4 Form of Employment Agreement with Arnold Unger(3)
10.5 Form of Employment Agreement with Renee Unger(3)
10.6 Business Development Bank of Canada Note(3)
10.7 National Bank of Canada Revolving Demand Credit Facility(3)
21.1 List of Subsidiaries of Registrant(1)
23.1 Consent of Schwartz Levitsky Feldman, independent auditors(2)
23.2 Consent of Wildeboer Rand Thomson Apps & Dellelce (incorporated into Exhibit 5.1)
99.1 Share Exchange Agreement(2)
- ------------------------
(1) Filed with Amendment No. 1
(2) Filed with Amendment No. 2
(3) Filed with Amendment No. 3
ITEM 28. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to any charter provision, by-law, contract arrangements,
statute, 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 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 Act and will be governed by the final adjudication of such
issue.
The undersigned small business issuer 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 Act; (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.
II-3
(2) That, for the purpose of determining any liability under the 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 determining any liability under the Act, treat the information
omitted from the form of Prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of Prospectus
filed by the small business issuer under Rule 424(b)(1), or (4) or 497(h),
under the Act as part of this registration statement as of the time the
Commission declared it effective.
(5) For determining any liability under the Act, treat each
post-effective amendment that contains a form of Prospectus as a new
registration statement at that time as the initial bona fide Offering of
those securities.
II-4
SIGNATURES
Pursuant to the requirements of the Act, the Registrant certifies that it
has reasonable grounds to believe that it meets all of the requirement for
filing on Form SB-2 and has duly caused this Amendment No. 3 to its Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Province of Ontario, Canada on September 23, 1997.
INTERCORP EXCELLE INC.
By: /s/ ARNOLD UNGER
----------------------------------------
Arnold Unger
CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of the Act, this Amendment No. 3 to the
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
We, the undersigned officers and directors of INTERCORP EXCELLE INC. hereby
severally constitute and appoint Arnold Unger, our true and lawful
attorney-in-fact and agent with full power of substitution for us and in our
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and all documents
relating thereto, 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 necessary or advisable 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.
SIGNATURE TITLE DATE
- -------------------------------------------------------------------------------------------------------------- ---------------
/s/ ARNOLD UNGER Co-Chairman, Chief Executive Officer
------------------------------------------- September 23,
Arnold Unger 1997
/s/ RENEE UNGER Co-Chairman, President
------------------------------------------- September 23,
Renee Unger 1997
/s/ FRED BURKE Director, Chief Operating Officer, Chief Financial
------------------------------------------- Officer/Principal Accounting Officer, Secretary September 23,
Fred Burke 1997
/s/ LORI GUTMANN Director
------------------------------------------- September 23,
Lori Gutmann 1997
/s/ ALYSSE UNGER Director
------------------------------------------- September 23,
Alysse Unger 1997
/s/ JOHN ROTHSCHILD Director
------------------------------------------- September 19,
John Rothschild 1997
/s/ TAKETO MURATA Director
------------------------------------------- September 19,
Taketo Murata 1997
* Executed by Arnold Unger as attorney-in-fact pursuant to the power of
attorney executed on July 2, 1997.
II-5
EXHIBIT INDEX
1.1 Form of Underwriting Agreement(1)
1.2 Form of Selected Dealers Agreement(1)
1.3 Form of Agreement Among Underwriters(1)
3.1 Articles of Incorporation of the Registrant(3)
3.2 By-laws of Registrant(2)
4.1 Form of Underwriters' Warrant(1)
4.2 Form of Warrant Agreement(1)
4.3 Specimen Common Stock Certificate(3)
4.4 Specimen Redeemable Common Stock Purchase Warrant Certificate(3)
5.1 Opinion of Wildeboer Rand Thomson Apps & Dellelce(3)
10.1 Form of Consulting Agreement with Underwriters(1)
10.2..... 1997 Stock Option Plan(2)
10.3 Lease of Company's Facilities(3)
10.4 Form of Employment Agreement with Arnold Unger(3)
10.5 Form of Employment Agreement with Renee Unger(3)
10.6 Business Development Bank of Canada Note(3)
10.7 National Bank of Canada Revolving Demand Credit Facility(3)
21.1 List of Subsidiaries of Registrant(1)
23.1 Consent of Schwartz Levitsky Feldman, independent auditors(2)
23.2 Consent of Wildeboer Rand Thomson Apps & Dellelce (incorporated into Exhibit 5.1)
99.1 Share Exchange Agreement(2)
- ------------------------
(1) Filed with Amendment No. 1
(2) Filed with Amendment No. 2
(3) Filed with Amendment No. 3