As filed with the Securities and Exchange Commission on June 10, 1999
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BIG CITY BAGELS, INC.
(Exact name of registrant as specified in its charter)
New York 11-3137508
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
99 WOODBURY ROAD
HICKSVILLE, NEW YORK 11801
(Address of principal executive offices)
1996 PERFORMANCE EQUITY PLAN
1998 PERFORMANCE EQUITY PLAN
AND
OTHER EMPLOYEE OPTION PLAN
(Full title of the Plans)
MARK WEINREB
Chairman of the Board and Chief Executive Officer
Big City Bagels, Inc.
99 Woodbury Road
Hicksville, New York 11801
(516) 932-5050
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
DAVID ALAN MILLER, Esq.
Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016-2097
(212) 818-8800
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================== ==================== ===================== ====================== ====================
Title of Securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price aggregate registration fee
per share offering price
=========================================== ==================== ===================== ====================== ====================
<S> <C> <C> <C> <C>
Common Stock issuable upon exercise of 10,000 shares $0.9375(1) $ 406,625.00 $ 113.04
options granted and outstanding under the 480 shares $3.125(1)
Registrant's 1996 Performance Equity Plan 8,000 shares $ 4.6875(1)
("1996 Plan") 2,100 shares $10.00(1)
3,000 shares $20.00(1)
10,000 shares $26.875(1)
200 shares $42.50(1)
=========================================== -------------------- --------------------- ---------------------- ----------------------
Common Stock issuable upon exercise of 28,232 shares $ 1.125(2) $ 31,761.00 $ 8.83
options that may be granted under the
1996 Plan
=========================================== -------------------- --------------------- ---------------------- ----------------------
Common Stock issuable upon exercise of 100,000 shares $1.00 (1) $ 100,000.00 $ 27.80
options granted and outstanding under the
Registrant's 1998 Performance Equity Plan
("1998 Plan")
=========================================== -------------------- --------------------- ---------------------- ----------------------
Common Stock issuable upon exercise of 300,000 shares $ 1.125(2) $ 337,500.00 $ 93.83
options that may be granted under the
1998 Plan
=========================================== -------------------- --------------------- ---------------------- ----------------------
Common Stock issuable upon exercise of 25,000 shares $0.48(1) $33,875.00 $9.42
options granted under other employee 12,500 shares $0.75(1)
option plan ("Other Employee Option Plan") 12,500 shares $1.00(1)
====================================================================================== ====================== ====================
TOTAL $ 909,761.00 $ 252.92
====================================================================================== ====================== ====================
</TABLE>
(1) Represents the exercise prices payable for the shares issuable upon
exercise of outstanding options granted under the 1996 Plan, 1998 Plan
or Other Employee Option Plan, as the case may be, in accordance with
Rule 457(h) promulgated under the Securities Act of 1933, as amended
("Securities Act").
(2) Based on the average of the bid and asked price of the Common Stock as
reported by the OTC Bulletin Board on June 8, 1999 in accordance with
Rules 457(c) and 457(h) promulgated under the Securities Act.
---------------------
In accordance with the provisions of Rule 462 promulgated under the
Securities Act, the Registration Statement will become effective upon filing
with the Securities and Exchange Commission.
---------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information *
Item 2. Registrant Information and 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 and the Note to Part I of the
Instructions to Form S-8.
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<PAGE>
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 ("Commission") pursuant to the Securities
Exchange Act of 1934, as amended ("Exchange Act") are incorporated by reference
in this Registration Statement:
(1) Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1998;
(2) Quarterly Report on Form 10-QSB for the quarter ended March
31, 1999;
(3) Current Report on Form 8-K, dated May 21, 1999; and
(4) The description of the Common Stock contained in the
Registrant's 8-A Registration Statement filed with the
Commission pursuant to Section 12(g) of the Exchange Act,
including any subsequent amendment(s) or report(s) filed for
purposes of updating such description.
At all times that this Registration Statement is deemed effective,
documents filed by the Registrant after the date hereof pursuant to its
obligations under the Exchange Act shall be deemed to be incorporated by
reference herein and to be a part hereof from the respective date of filing of
such documents. Any statement contained herein in a document incorporated by
reference herein is modified or superseded for all purposes to the extent that a
statement contained herein or in any other subsequently filed document that is
incorporated by reference modifies or replaces such statement.
Item 4. Description of Securities.
The Common Stock of the Registrant 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.
Sections 721 through 726, inclusive, of the Business Corporation Law of
New York ("BCL") authorizes New York corporations to indemnify their officers
and directors under certain circumstances against expenses and liabilities
incurred in legal proceedings involving such persons because of their being or
having been officers or directors and to purchase and maintain insurance for
indemnification of such officers and directors.
Section 402(b) of the BCL permits a corporation, by so providing in its
certificate of incorporation, to eliminate or limit directors' personal
liability to the corporation or its shareholders for damages arising out of
certain alleged breaches of their duties as directors. The BCL, however,
provides that no such limitation of liability may affect a director's liability
with respect to any of the following: (1) acts or omissions made in bad faith or
which involved intentional misconduct or a knowing violation of law; (2) the
declaration of dividends or other distributions or repurchase or redemption of
shares in violation of the BCL; (3) the distribution of assets after dissolution
or making loans to directors in violation of the BCL; or (4) any transaction
from which the director derived a financial profit or other advantage to which
he was not legally entitled.
The Registrant's Restated Certificate of Incorporation, as amended,
provides that the personal liability of the directors of the Registrant is
eliminated to the fullest extent permitted by Section 402(b) of the BCL. In
addition, the By-laws of the Registrant, as amended, provide in substance that,
to the fullest extent permitted by New York law, each director and officer shall
be indemnified by the Registrant against reasonable expenses, including
attorney's fees, and any liabilities that he or she may incur in connection with
any action to which he or she may be made a party by reason of his or her being
or having been a director or officer of the Registrant. The indemnification
provided by the Registrant's By-laws is not deemed exclusive of or in any way to
limit any other rights which any person seeking indemnification may be entitled.
II-1
<PAGE>
The Registrant's employment agreement with Mark Weinreb provides that
the Registrant shall indemnify him and hold him harmless for the consequences of
all acts and decisions made by him in good faith while performing services for
the Registrant. The Registrant also has directors' and officers' liability
insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4.1 1996 Performance Equity Plan (incorporated by reference to Exhibit
10.4 to the Registrant's Registration Statement on Form SB-2
(No. 333-2154))
4.2 1998 Performance Equity Plan (incorporated by reference to Exhibit
10.14 to the Registrant's Annual Report on Form 10-KSB for the
year ended December 31, 1998)
4.3 Stock Option Agreement between the Registrant and Mark Weinreb,
dated as of May 21, 1999 (incorporated by reference to Exhibit
10.2 to the Registrant's Current Report on Form 8-K, dated May 21,
1999)
5.1 Opinion of Graubard Mollen & Miller
23.1 Consent of Richard A. Eisner & Company, LLP
23.2 Consent of Graubard Mollen & Miller (included in Exhibit 5.1)
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 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 price 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;
(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, Form S-8 or Form F-3, and 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.
II-2
<PAGE>
(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 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.
(h) 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 the Act and will
be governed by the final adjudication of such issue.
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<PAGE>
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 the City of Hicksville, State of New York, on this 8th day of
June, 1999.
BIG CITY BAGELS, INC.
By: /s/ Mark Weinreb
Mark Weinreb, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark Weinreb his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments to this Registration Statement, including post-effective
amendments, and to file the same, with all exhibits thereto, and all documents
in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent, 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 might or could do in
person, and hereby ratifies and confirms all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
/s/ Mark Weinreb Chairman of the Board, Chief June 8, 1999
- --------------------- Executive Officer and Secretary
Mark Weinreb
/s/ Stanley Weinreb Director June 8, 1999
- ---------------------
Stanley Weinreb
/s/ Stanley Raphael Director June 8, 1999
- ---------------------
Stanley Raphael
/s/ Nelson Braff Director June 8, 1999
- ---------------------
Nelson Braff
/s/ Alan Pearlstein Director June 8, 1999
- ---------------------
Alan Pearlstein
/s/ Howard J. Fein Chief Financial Officer (and June 8, 1999
- --------------------- principal accounting officer)
Howard J. Fein
II-4
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4.1 1996 Performance Equity Plan of the Registrant (incorporated by
reference to Exhibit 10.4 to the Registrant's Registration
Statement on Form SB-2 (No. 333-2154))
4.2 1998 Performance Equity Plan (incorporated by reference to
Exhibit 10.14 to the Registrant's Annual Report on Form 10-KSB
for the year ended December 31, 1998)
4.3 Stock Option Agreement between the Registrant and Mark Weinreb,
dated as of May 21, 1999 (incorporated by reference to Exhibit
10.2 to the Registrant's Current Report on Form 8-K, dated May
21, 1999)
5.1 Opinion of Graubard Mollen & Miller
23.1 Consent of Richard A. Eisner & Company, LLP
23.2 Consent of Graubard Mollen & Miller (included in Exhibit 5.1)
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EXHIBIT 5.1
GRAUBARD MOLLEN & MILLER
600 Third Avenue
New York, NY 10016
June 10, 1999
Big City Bagels, Inc.
99 Woodbury Road
Hicksville, NY 11801
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to you in connection with the
registration on Form S-8 under the Securities Act of 1933, as amended
("Securities Act"), by Big City Bagels, Inc. ("Company") of up to (i) 62,012
shares of the Company's common stock, $.001 par value per share ("Common
Stock"), issuable upon exercise of options or pursuant to other stock-based
awards that have been or may be granted under the Company's 1996 Performance
Equity Plan, (ii) 400,000 shares of Common Stock issuable upon exercise of
options or pursuant to the stock-based awards that have been or may be granted
under the Company's 1998 Performance Equity Plan and (iii) 50,000 shares of
Common Stock issuable upon exercise of options or pursuant to other stock-based
awards that have been granted under an Other Employee Option Plan (collectively,
the "Plans").
In such capacity, we have examined, among other documents, the
Plans, copies of the Restated Certificate of Incorporation, as amended, and
By-Laws, as amended, of the Company and copies of resolutions adopted by the
Company's Board of Directors relating, among other things, to the adoption of
the Plans and the authorization and sale of the shares of Common Stock to be
sold pursuant to the Plans. We have examined and relied upon, to the extent we
deemed such reliance proper, certificates of officers and directors of the
Company, certificates of certain public officials and such other records and
documents as we have considered necessary or desirable and proper in order that
we may render the opinion hereinafter set forth. We have assumed the
authenticity of such Restated Certificate of Incorporation, as amended, By-Laws,
as amended, resolutions, certificates, records and other documents examined by
us and the correctness of all statements of fact contained therein, and nothing
has come to our attention that indicates that such documents and other items are
not authentic or correct. With respect to such examination, we have assumed the
genuineness of all signatures appearing on all documents presented to us as
originals and the conformity to originals of all documents presented to us as
conformed or reproduced documents. We have not examined the certificates for the
shares of Common Stock other than specimens thereof.
As members of the Bar of the State of New York, we do not
purport to be experts in the law of any jurisdiction other than the State of New
York and with respect to the Federal law of the United States.
Based on the foregoing, we are of the opinion that the shares
of Common Stock being offered pursuant to the Plans and the terms of the Plans
have been duly authorized and, when issued and delivered against payment
therefor, as contemplated by the Plans, will be validly issued and fully paid
and nonassessable.
We here consent to the filing of this opinion as an exhibit to
the Registration Statement, to the use of our name as your counsel, and to all
references made to us in the Registration Statement. In giving this consent, we
do not hereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act, or the rules and regulations
promulgated thereunder.
<PAGE>
Big City Bagels, Inc.
June 10, 1999
Page 2
This letter is being delivered to you solely for your benefit
and may not be relied upon in any manner by any other person.
Very truly yours,
/s/ Graubard Mollen & Miller
GRAUBARD MOLLEN & MILLER
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Big City Bagels, Inc.
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Big City Bagels, Inc. of our report dated February 22,
1999 (March 23, 1999 with respect to Note L), relating to the consolidated
financial statements of Big City Bagels, Inc. and subsidiary appearing in the
Company's Annual Report on Form 10-KSB for the year ended December 31, 1998. Our
report contains an explanatory paragraph as to the existence of substantial
doubt about the Company's ability to continue as a going concern.
/s/ Richard A. Eisner & Company, LLP
RICHARD A. EISNER & COMPANY, LLP
New York, New York
June 7, 1999
