Registration No. ___________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Barbeques Galore Limited
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(Exact name of registrant as specified in its charter)
AUSTRALIAN CAPITAL NOT APPLICABLE
TERRITORY, AUSTRALIA
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(State or other jurisdiction (I.R.S. employer identification no.)
incorporation or organization)
327 CHISHOLM
ROAD, AUBURN
SYDNEY, NSW 2144
AUSTRALIA
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(Address of principal executive offices) (Zip code)
BARBEQUES GALORE LIMITED
EXECUTIVE SHARE OPTION PLAN
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(Full title of the plan)
SYDNEY SELATI
BARBEQUES GALORE LIMITED
15041 BAKE PARKWAY, SUITE A
IRVINE, CA 92618
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (949) 597-2400
ext.312
This registration statement, including all exhibits and attachments, contains 13
pages. The exhibit index may be found on page 5 of the consecutively numbered
pages of the registration statement.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of securities Amount to be maximum maximum Amount of
to be registered/1/ registered/2/ offering aggregate registration
price per offering price/3/ fee/4/
share/3/
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Options to Purchase
Ordinary Shares 203,038 N/A N/A N/A
Ordinary Shares 203,038 A$8.38 A$1,701,458.44 $243.35
US$4.54/4/ US$921,792.52/4/
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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 Executive Share Option Plan by reason of any
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/ Based on the number of shares subject to options being registered, or
203,038, multiplied by the exercise price of those options, or A$8.38 per share.
/4/ Registration fee based on Australian and U.S. currency conversation rate in
effect on December 15, 20000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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Barbeques Galore Limited, an Australian corporation (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 Annual Report for Foreign Private Issuers filed
with the SEC pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on Form 20-F (file number 333-37259)
on May 1, 2000, containing audited financial statements for the Registrant's
latest fiscal year ended January 31, 2000;
(b) The Registrant's Report of Foreign Issuer on Form 6-K (file
number 333-37259), for the fiscal quarter ended July 31, 2000, as filed with the
SEC on September 14, 2000; and
(c) The Registrant's Registration Statement for Foreign Issuers filed
with the SEC pursuant to Rule 415 of the Securities Act of 1933, as amended the
("1933 Act"), on Form F-1 (file number 333-56805), filed with the SEC on June
12, 1998, in which there is set forth audited financial statements of the
Registrant.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this
Registration Statement and 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 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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The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
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Not Applicable.
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Item 6. Indemnification of Directors and Officers
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The Registrant's Constitution provides that subject to the laws of
Australia, every Director or other officer shall be entitled to be indemnified
by the Registrant against any liability incurred by him in that capacity to
another person (other than the Registrant or a related body corporate of the
Registrant) unless the liability arises out of conduct involving a lack of good
faith, willful misconduct or reckless behavior. In addition, every Director or
other officer shall be entitled to be indemnified by the Registrant for costs
and expenses incurred by the officer in that capacity either in defending any
proceedings, civil or criminal, in which judgment is given in his favor, or in
which he is acquitted, or in connection with an application in relation to such
proceedings in which the court grants relief to the person under the
Corporations Law of Australia.
The Registrant's Constitution further provides that the Registrant may,
to the extent permitted by law, purchase and maintain insurance or pay or agree
to pay a premium for insurance for any Director or other officer against any
liability incurred by the person as an officer of the Registrant or of a related
body corporate including, but not limited to, a liability for negligence or for
reasonable costs and expenses incurred in defending proceedings, whether civil
or criminal and whatever their outcome.
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 $10 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.
Item 7. Exemption From Registration Claimed
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Not Applicable.
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Item 8. Exhibits
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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 (file number 333-37259) on Form F-A/1
which was filed October 10, 1997 and is
incorporated herein by reference pursuant to Item
3(c).
5.1 Opinion regarding legality: Opinion and Consent of
Freehills.
5.2 Opinion regarding legality: Opinion and Consent of
Gray Cary Ware & Freidenrich LLP.
23.1 Consent of experts and counsel: Consent of
Freehills is contained in Exhibit 5.1.
23.2 Consent of experts and counsel:
Consent of Gray Cary Ware & Freidenrich LLP is
contained in Exhibit 5.2.
23.3 Consent of Accountant: Consent of KPMG Peat
Marwick LLP.
24 Power of attorney: Reference is made to page 9 of
this Registration Statement.
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;
(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)
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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)(l)(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.
(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.
(b) The undersigned registrant hereby undertakes 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
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) 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
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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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SIGNATURE
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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 December 21, 2000.
Barbeques Galore Limited
By: /s/ Robert Gavshon
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Robert Gavshon
Deputy Chairman of the Board of
Directors and General Counsel
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SIGNATURES AND POWER OF ATTORNEY
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The officers and directors of Barbeques Galore Limited, an Australian
corporation, whose signatures appear below, 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 of substitution,
each with power to act alone, to sign and execute on behalf of the undersigned
any amendment or amendments to this registration statement on Form S-8, and each
of the undersigned does hereby ratify and confirm all that each of said attorney
and agent, or their or his substitutes, shall 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 on December 21, 2000.
Signature Title
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/s/ Sam Linz Chairman of the Board and Director
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Sam Linz (Principal Executive Officer)
/s/ David James Chief Financial Officer
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David James (Principal Financial and Accounting
Officer)
/s/ Robert Gavshon Deputy Chairman of the Board and Director
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Robert Gavshon
/s/ John Price Director
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John Price
/s/ Edgar Berner Director
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Edgar Berner
/s/ Gordon Howlett Director
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Gordon Howlett
/s/ Sydney Selati Director and Authorized U.S. Representative
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Sydney Selati
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