As filed with the Securities and Exchange Commission on February 19, 1998
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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BARBEQUES GALORE LIMITED
(Exact name of registrant as specified in its charter)
AUSTRALIAN CAPITAL TERRITORY, AUSTRALIA NOT APPLICABLE
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
327 CHISHOLM ROAD, AUBURN, SYDNEY, NSW 2144, AUSTRALIA
(Address of principal executive offices) (Zip code)
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BARBEQUES GALORE LIMITED
1997 SHARE OPTION PLAN (Full title of the Plans)
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SYDNEY SELATI
BARBEQUES GALORE LIMITED
15041 BAKE PARKWAY #A
IRVINE, CALIFORNIA 92718
(Name and address of agent for service)
(714) 597-2400
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be to be Offering Price Aggregate Registration
Registered(1) Registered(2) per Share(3) Offering Price(3) Fee
- ------------------------ ------------ -------------- ---------------- ------------
Options to Purchase
Ordinary Shares 329,254 N/A N/A N/A
Ordinary Shares 329,254 shares $6.59 $2,169,783.86 $640.09
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(1) American Depository Shares which may be issued with respect to Ordinary
Shares registered hereunder have been registered on a separate registration
statement on Form F-6 (File No. 333-07726).
(2) This Registration Statement shall also cover any additional Ordinary Shares
which become issuable under the 1997 Share Option Plan by reason of any
bonus issue, recapitalization or other similar transaction effected without
the receipt of consideration which results in an increase in the number of
the Registrant's outstanding Ordinary Shares.
(3) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling prices per American Depository Shares evidencing one
Ordinary Share of Barbeques Galore Limited on February 17, 1998 as reported
by the Nasdaq National Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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Barbeques Galore Limited (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's prospectus filed with the SEC pursuant to Rule 424(b)
of the Securities Act of 1933, as amended (the "1933 Act"), in
connection with the Registration Statement Number 333-37259 on Form F-
1, together with the amendments thereto, filed with the SEC on October
6, 1997, in which there is set forth audited financial statements of
the Registrant; and
(b) The Registrant's Report of Foreign Issuer on Form 6-K, file number
333-37259, for the fiscal quarter ended October 31, 1997, as filed
with the SEC on December 16, 1997;
(c) The Registrant's Registration Statement No. 00-029512 on Form 8-A
filed with the SEC on October 23, 1997 pursuant to Section 12 of the
Securities Act of 1934 (the "1934 Act"), in which there is described
the terms, rights and provisions applicable to the Registrant's
outstanding Ordinary Shares.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
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 into this Registration Statement and to be a part
hereof from the date of filing of such documents. 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 subsequently filed
document which also 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
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Not Applicable.
Item 5. Interests of Named Experts and Counsel
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Not Applicable.
Item 6. Indemnification of Directors and Officers
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The Registrant's Memorandum and Articles of Association provide that
subject to the laws of Australia, every Director or other officer shall be
entitled to be indemnified by the Registrant against all losses or liabilities
incurred by him in the execution and discharge of his duties, or in relation
thereto, including any liability in defending any proceedings, civil or
criminal, which relate to anything done or omitted or alleged to have been done
or omitted by him as an officer or employee of the Registrant and (i) in which
judgment is given in his favor, (ii) in which he is acquitted or (iii) in
connection with an application in relation to such proceedings in which the
court grants relief to the person under the Corporations Law. The Underwriting
Agreement will contain provisions indemnifying officers and directors of the
Registrant against certain liabilities.
The Registrant's Memorandum and Articles of Association further provide
that no director or other officer shall be liable, except in the case of his own
negligence, default, breach of duty or breach of trust, for (i) the acts or
omissions of any other director or officer, (ii) joining in any act for
conformity, (iii) losses due to inadequacy of title to property or securities
acquired on behalf of the Registrant, (iv) losses due to insolvency or tortious
acts of persons with whom monies, property or securities are deposited or (v)
losses due to errors of judgment, omissions or oversights.
The Registrant maintains a policy of directors' and officers' liability
insurance with an Australian insurer for the Registrant and all subsidiaries
protecting against all losses for which directors and officers are not otherwise
indemnified by the Registrant. Such insurance has a A$5 million policy limit
and excludes (i) fines and penalties imposed by law, (ii) claims made by
entities owning 10% or more of the outstanding Ordinary Shares of the
Registrant, (iii) claims based on pollution, bodily injury, property damage or
loss, insider trading, the receipt of illegal or improper benefit, deliberately
fraudulent acts or omissions or violation of fiduciary duties with respect to
pension or benefit plans, (iv) certain insured versus insured actions and,
specifically in the United States and Canada, (v) claims relating to violations
of securities laws or the Employee Retirement Income Security Act of 1974
(ERISA) or any similar federal, state or local law. Prior to the consummation
of the Offering, the Company intends to obtain a policy of directors' and
officers' liability insurance that will insure United States directors and
officers against the cost of defense, settlement or payment of a judgment under
certain circumstances, including certain violations of the securities laws.
Item 7. Exemption from Registration Claimed
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Not Applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Shareholders. Reference is
made to Registrant's Registration Statement No. 00-029512 on
Form 8-A which is incorporated herein by reference pursuant to
Item 3(c).
5 Opinion and Consent of Freehill, Hollingdale & Page.
23.1 Consent of Horwath Sydney Partnership.
23.2 Consent of KPMG.
23.3 Consent of Freehill, Hollingdale & Page is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1997 Share Option Plan.
99.2 Form of Notice of Grant under the 1997 Share Option Plan.
99.3 Stock Option Agreement under the 1997 Share Option Plan.
99.4 Addendum to Stock Option Agreement under the 1997 Share
Option Plan.
Item 9. Undertakings.
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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 of 1933, as amended (the "1933 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, and (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 clauses
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(1)(i) and (1)(ii) shall not apply if the information required
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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 1934 Act that are incorporated by reference into the Registration
Statement; (2) that for the purpose of determining any liability under the 1933
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; and (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 1997 Share Option Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into 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. Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
informed that, in the opinion of the SEC, such indemnification is against public
policy as expressed in the 1933 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 1933
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, as amended, 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 Sydney, Australia on this 18th day of February,
1998.
BARBEQUES GALORE LIMITED
By: /s/ Robert Gavshon
_______________________________________
Robert Gavshon
Deputy Chairman of the Board and
General Counsel
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Barbeques Galore Limited, an
Australia corporation, do hereby constitute and appoint Robert Gavshon and
Sydney Selati, or either of them, each with the power of substitution, the
lawful attorneys and agents, with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, and any one of them, determine may be necessary or advisable or required
to enable said corporation to comply with the Securities Act of 1933, as
amended, and any rules or regulations or requirements of the Securities and
Exchange Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms all that said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Sam Linz Chairman of the Board February 18, 1998
- ------------------- (Principal
Sam Linz Executive Officer)
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/s/ Robert Gavshon Deputy Chairman of the Board February 18, 1998
- ------------------ and General Counsel
Robert Gavshon
/s/ John Price Head of Research and Product February 18, 1998
- ------------------- Development and Director
John Price
/s/ Sydney Selati President of Galore USA February 18, 1998
- ------------------ and Director (Authorized
Sydney Selati U.S. Representative)
/s/ Philip Gardiner Director February 18, 1998
- -------------------
Philip Gardiner
/s/ Gordon Howlett Director February 18, 1998
- -------------------
Gordon Howlett
/s/ David James Chief Financial Officer February 18, 1998
- ------------------- (Principal Financial and
David James Accounting Officer)
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EXHIBIT INDEX
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Exhibit
Number Exhibit
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4 Instruments Defining the Rights of Shareholders. Reference is made
to Registrant's Registration Statement No. 00-029512 on Form 8-A
which is incorporated herein by reference pursuant to Item 3(c).
5 Opinion and Consent of Freehill, Hollingdale & Page.
23.1 Consent of Horwath Sydney Partnership.
23.2 Consent of KPMG.
23.3 Consent of Freehill, Hollingdale & Page is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1997 Share Option Plan.
99.2 Form of Notice of Grant under the 1997 Share Option Plan.
99.3 Stock Option Agreement under the 1997 Share Option Plan.
99.4 Addendum to Stock Option Agreement under the 1997 Share Option Plan.