As filed with the Securities and Exchange Commission on September 29, 2003.
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UNITED STATES
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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COOLBRANDS INTERNATIONAL INC.
(Exact Name of Registrant as Specified in its Charter)
Province of Nova Scotia, Canada
(State of other jurisdiction of incorporation or organization)
Not Applicable
(I.R.S. Employer Identification No.)
8300 Woodbine Avenue, 5th Floor, Markham, Ontario Canada L3R 9Y7
(Address of Principal Executive Offices) (Zip Code)
CoolBrands International Inc. 1998 Stock Option Plan
CoolBrands International Inc. 2002 Stock Option Plan
(Full Title of the Plan)
Integrated Brands, Inc.
4175 Veterans Highway
Ronkonkoma, NY 11775
Attention: Gary P. Stevens
(Name and Address of Agent for Service)
(631) 737-9700
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed
Title of each Amount Offering Maximum Amount of
Class of Securities To be Price Per Aggregate Registration
to be Registered Registered(1) Share(2) Offering Price(2) Fee(2)
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Class A Subordinate Voting Shares 8,406,961 $ 7.3936 $62,157,707 $ 5,029
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(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also registers an indeterminate number of shares of
common stock which may be issued pursuant to the anti-dilution provisions
of the stock options granted or to be granted by the Registrant under its
1998 Stock Option Plan and 2002 Stock option Plan.
(2) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457 under the Securities Act of 1933 and based upon (a)
as to the 3,060,882 and 1,297,577 Class A Subordinate Voting Shares
issuable upon exercise of options previously granted under the
Registrant's 1998 and 2002 Stock Option Plans, respectively, upon the
prices at which such options may be exercised, (b) as to the remaining
176,079, and 3,872,423 Class A Subordinate Voting Shares issuable upon
exercise of options reserved for future grant under the Registrant's 1998
and 2002 Stock Option Plans, respectively, on the basis of the average of
the high and low prices for the Class A Subordinate Voting Shares as
quoted on the Toronto Stock Exchange on September 25, 2003. Canadian
dollar amounts have been translated into United States dollars at $1.00
United States dollar=$1.3477 Canadian dollars which was the noon buying
rate for cable transfers as certified by the Federal Reserve Bank of new
York on September 25, 2003.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee
Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
1. Annual Report on Form 40-F for the fiscal year ended August 31, 2002;
2. Amendment to Annual Report on Form 40-F for the fiscal year ended August 31,
2002 as filed with the Commission on September 29, 2003;
3. Reports on Form 6-K filed with the Commission on October 15, 2002; October
23, 2003: October 31,2002; November 8, 2002; December 16, 2002; January 17,
2003; January 24, 2003; February 3, 2003; March 6, 2003; April 1, 2003; April
15, 2003; April 25, 2003; July 3, 2003; July 8, 2003; July 18; 2003; July 21,
2003; September 12, 2003; and
4. All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 in this Registration Statement and to
be a part hereof from the respective date of filing of such documents. Any
statement contained in a document incorporated by reference herein is modified
or superseded for all purposes to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which is
incorporated by reference modifies or replaces such statement.
Any 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 subsequently filed document which also is incorporated or
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.
Holders of Class A Subordinate Voting Shares are entitled to notice of and
to attend all meetings of the shareholders of the Registrant, other than those
meetings at which only holders of another specified class or series of shares of
the Registrant are entitled to vote and are entitled to one vote for each
Subordinate Voting Share held on all votes taken at such meetings. As of
September 25, 2003 there were 45,665,345 Class A Subordinate Voting Shares
issued and outstanding. The Registrant also has a class of Multiple Voting
Shares issued and outstanding. Each Multiple Voting Share entitles the holder
thereof to notice of and to attend all meetings of the shareholders of the
Registrant, other than those meetings at which only holders of another specified
class or series of shares of the Registrant are entitled to vote and are
entitled to ten votes for each Multiple Vote Share held on all votes at such
meetings. As of September 25, 2003 there were 6,145,126 Multiple Voting Shares
issued and outstanding. The Subordinate Voting Shares and the Multiple Voting
Shares vote as a single class unless otherwise required by law. Holders of
Subordinate Voting Shares are entitled to receive such dividends as may be
declared by the directors and payable by the Registrant on Subordinate Voting
Shares out of assets properly applicable to the payment of dividends prior to
the payment of dividends to the holders of Multiple Voting Shares. Holders of
Subordinate Voting Shares are entitled to
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share equally with the holders of Multiple Voting Shares any remaining property
of the Registrant in the event of the liquidation, dissolution or winding-up of
the Registrant, or any other distribution of assets of the Registrant among its
shareholders for the purposes of winding up its affairs, subject to the prior
rights of the holders of any shares ranking prior to Subordinate Voting Shares
and the Multiple Voting Shares with respect to a liquidation, dissolution or
winding up of the Registrant. The holders of Subordinate Voting Shares are
entitled to convert such Shares into Multiple Voting Shares in the event that an
offer is made to the holders of the Multiple Voting Shares to purchase such
shares if such offer must, by law, be made to all or substantially all of the
shareholders of the Registrant.
Item 5. Interests of Named Experts and Counsel.
Not applicable
Item 6. Indemnification of Directors and Officers.
Section 204 of the Regulations for Management of a Company Limited by
Shares under the Companies Act (Nova Scotia) (the "Regulations)" provides that
every Director, manager, Secretary, Treasurer and other officer or servant of a
company shall be indemnified by the company against, and it shall be the duty of
the Directors out of the funds of the company to pay, all costs, losses and
expenses that any such Director, manager, Secretary, Treasurer or other officer
or servant may incur or become liable to pay by reason of any contract entered
into, or act or thing done by him as such officer or servant or in any way in
the discharge of his duties including traveling expenses; and the amount for
which such indemnity is provided shall immediately attach as a lien on the
property of the company and have priority as against the members over all other
claims.
Section 205 of the Regulations provides that no Director or other officer
of the company shall, in the absence of any dishonesty on the part of the
Director or such other officer, be liable for the acts, receipts, neglects or
defaults of any other Director or officer, or for joining in any receipt or
other act for conformity, or for any loss or expense happening to the company
through the insufficiency or deficiency of title to any property acquired by
order of the Directors for or on behalf of the company, or through the
insufficiency or deficiency of any security in or upon which any of the moneys
of the company are invested, or for any loss or damage arising from the
bankruptcy, insolvency or tortious act of any person with whom any moneys,
securities or effects are deposited, or for any loss occasioned by error of
judgment or oversight on his or her part, or for any other loss, damage or
misfortune whatsoever which happens in the execution of the duties of his or her
office or in relation thereto.
The Registrants' Articles of Association provide as follows:
Every director or officer, former director or officer, or person who
acts or acted at the Company's request, as a director or officer of
the Company, a body corporate, partnership or other association of
which the Company is or was a shareholder, partner, member or
creditor, and the heirs and legal representatives of such person, in
the absence of any dishonesty on the part of such person, shall be
indemnified by the Company against, and it shall be the duty of the
directors out of the funds of the Company to pay to the fullest
extent permitted by law, all costs, losses and expenses, including
legal fees and disbursements and including an amount paid to settle
an action or claim or satisfy a judgment, that such director,
officer or person may incur or become liable to pay in respect of
any claim made against such person or civil, criminal or
administrative action or proceeding to which such person is made a
party by reason of being or having being or having been a director
or officer of the Company or such body corporate, partnership or
other association, whether the Company is a claimant or party to
such action or proceeding or otherwise; and the amount for which
such indemnity is proved shall immediately attach as a lien on the
property of the Company and have priority as against the
shareholders over all other claims.
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No director or officer, former director or officer, or person who
acts or acted at the Company's request, as a director or officer of
the Company, a body corporate, partnership or other association of
which the Company is or was a shareholder, partner, member or
creditor in the absence of any dishonesty on such person's part,
shall be liable for the acts, receipts, neglects or defaults of any
other director, officer or such person, or for joining in any
receipt or other act for conformity, or for any loss, damage or
expense happening to the Company through the insufficiency or
deficiency of title to any property acquired for or on behalf of the
Company, or through insufficiency or deficiency of any security in
or upon which any of the funds of the Company are invested, or for
any loss or damage arising from the bankruptcy, insolvency or
tortious acts of any person with whom any funds, securities or
effects are deposited, or for any loss occasioned by error of
judgment or oversight on the part of such person, or for any other
loss, damage or misfortune whatsoever which happens in the execution
of the duties of such person or in relation thereto.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Description
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5 Opinion of Stewart, McKelvey Stirling Scales
23.1 Consent of BDO Dunwoody LLP
23.2 Consent of Stewart, McKelvey Stirling Scales
(included in Exhibit 5)
24 Power of Attorney (included on Page II-5 of this
Registration Statement)
Item 9. Undertakings.
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) 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 and 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 prices
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
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(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 (1)(i) and (1)(ii) do not apply if 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 15(d) of the
Securities Exchange Act of 1934 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.
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
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.
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 whether such
indemnification by it is against public policy as expressed in such 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 Markham, Ontario, Canada, on this 29th day of September 2003.
COOLBRANDS INTERNATIONAL
By: /s/ David J. Stein
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David J. Stein, Co-Chief Executive Officer
Each person whose signature appears below authorizes each of David J.
Stein and Gary P. Stevens, or either of them as his true and lawful
attorney-in-fact with full power of substitution to execute in the name and on
behalf of each such person, individually and in each capacity stated below, and
to file any and all amendments to this Registration Statement, including any and
all post-effective amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following person in the capacities and
on the dates stated.
Signature Title Date
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/s/ Michael Serruya Co-Chairman and Director September 29, 2003
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Michael Serruya
/s/ Richard E. Smith Co-Chairman, Co-Chief Executive Officer and September 29, 2003
--------------------------- Director
Richard E. Smith
/s/ David J. Stein President, Co-Chief Executive Officer and Director September 29, 2003
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David J. Stein
/a/ Aaron Serruya Executive Vice President, Secretary and Director September 29, 2003
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Aaron Serruya
/s/ David M. Smith Executive Vice President and Director September 29, 2003
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David M. Smith
/s/ Gary P. Stevens Chief Financial Officer and Authorized September 29, 2003
-------------------------- Representative in the United States
Gary P. Stevens (principal accounting officer)
Director September , 2003
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Romeo DeGasperis
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