AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 1997
Registration No. 333-__________
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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ATLANTIC PREMIUM BRANDS, LTD.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
36-3761400
(I.R.S. Employer Identification No.)
650 Dundee Road, Suite 370
Northbrook, Illinois 60062
(847) 480-4000
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
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Atlantic Premium Brands, Ltd. Employee Stock Purchase Plan
(Full title of the Plan)
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Tom D. Wippman
General Counsel and Secretary
Atlantic Premium Brands, Ltd.
650 Dundee Road, Suite 370
Northbrook, Illinois 60062
(847) 480-4000
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Michael J. Silver., Esq.
Hogan & Hartson L.L.P.
111 South Calvert Street
Baltimore Maryland 21202
(410) 659-2700
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CALCULATION OF REGISTRATION FEE
- -------------------------------------- ----------------- ---------------------- ---------------------- --------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE PRICE FEE (1)
- --------------------------------------- ----------------- ---------------------- ---------------------- --------------
Common Stock, par value $.01 per share 250,000 $3.75 $937,500 $284.09
- --------------------------------------- ----------------- ---------------------- ---------------------- --------------
(1) Estimated pursuant to Rule 457(c) and (h) of the Securities Act of 1933, as
amended solely for the purpose of calculating the amount of the Registration
fee, based on the average of the high and low prices per share of Atlantic
Premium Brands, Ltd. common stock, par value $.01 per shares, on October 31,
1997, as reported on the New York Stock Exchange.
Exhibit Index Appears on page 7.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). In accordance with
the instructions to Part I of Form S-8, such documents will not be filed with
the Securities and Exchange Commission (the "Commission") either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act. These documents and the documents incorporated
by reference pursuant to Item 3 of Part II of this registration statement, taken
together, constitute the prospectus as required by Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Atlantic Premium Brands, Ltd. (the "Company") hereby
incorporates by reference into this registration statement the following
documents filed by it with the Commission:
(a) The Registrant's Form 10-K for the fiscal year ended
December 31, 1996;
(b) All reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), since
December 31, 1996; and
(c) The description of the Company's Common Stock
("Common Stock"), contained in the Company's
Registration Statement on Form 8-A filed with the
Commission on October 14, 1993 and registering shares
of Common Stock pursuant to Section 12(g) of the
Exchange Act.
In addition, all documents and reports filed by the Company
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, and 15(d)
of the Exchange Act, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference in
this registration statement and to be part hereof from the date of filing of
such documents or reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein 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 subsequent filed document which also
is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable (the Common Stock is registered under Section
12 of the Exchange Act).
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law (the
"Delaware Law"), a corporation may indemnify its directors, officers, employees
and agents and its former directors, officers, employees and agents and those
who serve, at the corporation's request, in such capacities with another
enterprise, against expenses (including attorneys' fees), as well as judgments,
fines and settlements in nonderivative lawsuits, actually and reasonably
incurred in connection with the defense of any action, suit or proceeding in
which they or any of them were or are made parties or are threatened to be made
parties by reason of their serving or having served in such capacity. The
Delaware Law provides, however, that such person must have acted in good faith
and in a manner he or she reasonably believed to be in (or not opposed to) the
best interests of the corporation and, in the case of a criminal action, such
person must have had no reasonable cause to believe his or her conduct was
unlawful. In addition, the Delaware Law does not permit indemnification in an
action or suit by or in the right of the corporation, where such person has been
adjudged liable to the corporation, unless, and only to the extent that, a court
determines that such person fairly and reasonably is entitled to indemnity for
costs the court deems proper in light of liability adjudication. Indemnity is
mandatory to the extent a claim, issue or matter has been successfully defended.
The Company's Restated Certificate of Incorporation and Bylaws
provide for mandatory indemnification of directors and officers on generally the
same terms as permitted by the Delaware Law. Under the Restated Certificate of
Incorporation, the Company shall advance expenses incurred by an officer or
director in defending any such action if the director or officer undertakes to
repay such amount if it is determined that he or she is not entitled to
indemnification. The Company has obtained directors and officers liability
insurance.
* * *
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
2
ITEM 8. EXHIBITS.
Exhibit
Number Description
------- -----------
5.1 Opinion of Hogan & Hartson L.L.P. regarding
the legality of the shares being registered.
10.1 Atlantic Premium Brands, Ltd. Employee Stock
Purchase Plan, dated November 1, 1997.
23.1 Consent of Hogan & Hartson L.L.P. (included
in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP Independent
Auditors.
24.1 Power of Attorney (included on signature
pages).
99.1 Section 145 of the Delaware General
Corporation Law.
ITEM 9. 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:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities 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. 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 a 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 paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3, or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
3
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
(c) The undertaking concerning indemnification is set
forth under the response to Item 6.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the undersigned 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 Village of Northbrook, State of Illinois, on
the 5th day of November, 1997.
ATLANTIC PREMIUM BRANDS, LTD.
By: /s/ Alan F. Sussna
_________________________
Alan F. Sussna
President
POWER OF ATTORNEY
Know all men by these presents, that each individual whose
signature appears below constitutes and appoints Alan F. Sussna, Merrick E.
Elfman and Tom D. Wippman, and each of them, his or her true and lawful
attorney-in-fact and agent, with power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all capacities,
to sign a registration statement (the "Registration Statement") relating to a
registration of shares of common stock on Form S-8 and to sign any and all
amendments (including post-effective amendments) to the Registration Statement,
and to file the same, with all exhibits and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their, his or her substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons in
the capacities indicated as of the 5th day of Nobember, 1997:
/s/ Alan F. Sussna Director, President and Chief Executive
______________________________ Officer
Alan F. Sussna
/s/ Merrick M. Elfman Director and Chairman of the Board
______________________________
Merrick M. Elfman
______________________________
Rick Inatome Director
______________________________
John A. Miller Director
______________________________
G. Cook Jordan, Jr. Director
/s/ Steven M. Taslitz
______________________________
Steven M. Taslitz Director
/s/ Eric D. Becker
______________________________
Eric D. Becker Director
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EXHIBIT INDEX
Exhibit
Number Description Page
- ------- ----------- ----
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the shares being registered.
10.1 Atlantic Premium Brands, Ltd. Employee Stock Purchase Plan, dated November 1, 1997.
23.1 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP Independent Auditors.
24.1 Power of Attorney (included on signature pages).
99.1 Section 145 of the Delaware General Corporation Law.