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As filed with the Securities and Exchange Commission on April 27, 1998
Registration Statement No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ALL AMERICAN FOOD GROUP, INC.
(Exact name of registrant as specified in its charter)
New Jersey 22-3259558
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
104 New Era Drive, South Plainfield, New Jersey 07080
(Address of Principal Executive Offices) (Zip Code)
ALL-AMERICAN 1998 CONSULTANT STOCK PLAN
(Full title of the Plans)
Andrew Thorburn, Chairman and Chief Executive Officer
All American Food Group, Inc.
104 New Era Drive, South Plainfield, New Jersey 07080
(Name and address, including zip code of agent for services)
908-757-3022
(Telephone number, including area code, of agent for service)
Copies to:
Hank Gracin, Esq.
Lehman & Eilen
50 Charles Lindbergh Blvd., Suite 505
Uniondale, NY 11553
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act of 1933,
check the following box. [X]
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered Share* Price* Fee
Common Stock, no par
value, under the
All American 1998
Consultant Stock Plan 350,000 $ .50 $175,000 $51.63
TOTAL $175,000 $51.63
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*Estimated solely for the purpose of computing the registration fee pursuant to
Rule 457, on the basis of the closing price of the Registrant's Common Stock
as reported on NASDAQ on April 20, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this registration
statement.
(a) Registrant's Annual Report on Form 10-KSB for the fiscal year
ended October 31, 1997, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended.
(b) Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended January 31, 1998.
(c) The description of Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on December 6, 1996
under Section 12 of the Securities Exchange Act of 1934.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after the date of this
registration statement and prior to the filing of a post-effective amendment to
this registration statement which indicates that all securities offered
hereunder have been sold, or which deregisters all securities then remaining
unsold under this registration statement, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable; the class of securities to be offered is registered under
Section 12 of the Securities Exchange Act of 1934.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 14A:3-5 of the New Jersey Business Corporation Act (the "NJBCA")
gives the Registrant power to indemnify each of its directors and officers
against expenses and liabilities in connection with any proceedings involving
him by reason of his being or having been a director or officer if (a) he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Registrant and (b) with respect to any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful.
However, in a proceeding by or in the right of the Registrant, there shall be no
indemnification in respect of any liabilities or expenses if the officer or
director shall have been adjudged liable to the Registrant unless the court in
such proceeding determines he is entitled to indemnification for such
liabilities and/or expenses. Furthermore, no indemnification shall be made to or
on behalf of a director or officer if a judgment or other final adjudication
adverse to such director or officer establishes that his acts or omissions (a)
were in breach of his duty of loyalty to the Registrant and its stockholders,
(b) were not in good faith or involved a knowing violation of law or (c)
resulted in receipt by the director or officer of an improper personal benefit.
The NJBCA defines an act or omission in breach of a person's duty of loyalty as
an act or omission which that person knows or believes to be contrary to the
best interests of the Registrant or its stockholders in connection with a matter
in which he has a material conflict of interest. If a director or officer is
successful in a proceeding, the statute mandates that the Registrant indemnify
him against expenses.
The Registrant's Restated Certificate of Incorporation, as permitted by
New Jersey law, eliminates the personal liability of the directors and officers
to the Registrant or its shareholders for monetary damages for breaches of such
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director's or officer's duty of care or other duties as a director or officer;
except liabilities for any breach of duty based upon an act or omission (a) in
breach of such person's duty of loyalty to the corporation or its shareholders,
(b) not in good faith or involving a knowing violation of law or (c) resulting
in receipt by such person of an improper personal benefit. This limitation on
liability could have the effect of limiting directors' and officers' liability
for violations of the federal securities laws. In addition, the Registrant's
Restated Certificate of Incorporation and Restated By-Laws provide broad
indemnification rights to directors and officers so long as the director or
officer acted in a manner believed in good faith to be in or not opposed to the
best interest of the Registrant and with respect to criminal proceedings if the
director had no reasonable cause to believe his or her conduct was unlawful. The
Registrant believes that the protection provided by these provisions will help
the Registrant attract and retain qualified individuals to service as officers
and directors. These provisions would provide indemnification for liabilities
arising under the federal securities laws to the extent that such
indemnification is found to be enforceable under, and to be in accordance with,
applicable law and generally will limit the remedies available to a shareholder
who is dissatisfied with a Board decision protected by these provisions, and
such shareholder's only remedy may be to bring a suit to prevent the Board's
action.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
Exhibit
Number Description of Document
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4.1 Second Restated Certificate of Incorporation of the Registrant
(incorporated herein by reference to Exhibit 3.3 of the Registrant's
Registration Statement on Form SB-2 (File No. 333-4490), as amended
(the "Registration Statement")).
4.2 Second Amended and Restated By-Laws of the Company (incorporated herein
by reference to Exhibit 3.5 of the Registrant's Registration
Statement).
4.3 All American 1998 Consultant Stock Plan
5.1 Opinion of counsel re: legality of securities being registered
23.1 Consent of DelSanto & DeFreitas
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Powers of Attorney
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;
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(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;
(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 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 Securities Exchange Act of 1934
that are incorporated by reference in this 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
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.
(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, 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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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 Fairfield, County of Essex, State of New Jersey, on the 24th day
of April, 1998.
ALL AMERICAN FOOD GROUP, INC.
By /s/ Andrew Thorburn
ANDREW THORBURN, Chairman of the Board
and Chief Executive Officer
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.
Signature Date
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/s/ Andrew Thorburn April 24, 1998
Name: ANDREW THORBURN
Title: Chairman of the Board of Directors,
President and Chief Executive Officer
(Principal Executive Officer and Principal
Financial and Accounting Officer)
/s/ Anthony Foster April 24, 1998
Name: ANTHONY FOSTER
Title: President and Director
/s/ John Chitvanni April 24, 1998
Name: JOHN CHITVANNI
Title: Director
/s/ Thomas Lisker April 10, 1998
Name: THOMAS LISKER
Title: Director
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INDEX TO EXHIBITS
Exhibit
Number Description of Documents Page
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4.1 Second Restated Certificate of Incorporation of the Registrant
(incorporated herein by reference to Exhibit 3.3 of the
Registrant's Registration Statement on Form SB-2 (File No.
333-4490), as amended (the "Registration Statement")).
4.2 Second Amended and Restated By-Laws of the Company (incorporated
herein by reference to Exhibit 3.5 of the Registrant's Registration
Statement).
4.3 All-American 1998 Consultant Stock Plan
5.1 Opinion of counsel re: legality of securities being registered
23.1 Consent of DelSanto & DeFreitas
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Powers of Attorney
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ALL-AMERICAN CONSULTANT STOCK PLAN
I. Purpose of the Plan.
The purpose of this Plan is to further the growth of All American Food
Group, Inc. and its subsidiaries (together being the "Company") by allowing the
Company to compensate All-American consultants and certain other persons
providing bona fide services to the Company, through the award of All American
Food Group, Inc. common stock and/or options to purchase same.
II. Definitions.
Whenever used in this Plan, the following terms shall have the meanings set
forth in this Section:
1. "Award" means any grant of Common Stock (or options to purchase
Common Stock) made under this Plan.
2. "Board of Directors" means the Board of Directors of All American Food
Group, Inc.
3. "Code" means the Internal Revenue Code of 1986, as amended.
4. "Common Stock" means the common stock, no par value per share, of All
American Food Group, Inc.
5. "Date of Grant" means the day the Board of Directors authorizes the
grant of an Award or such later date as may be specified by the Board of
Directors as the date a particular Award will become effective.
6. "Participant" means any person or entity that renders bona fide services
to the Company (including, without limitation, the following: a person employed
by the Company in a key capacity; an officer or director of the Company; a
person or company engaged by the Company as a consultant; or a lawyer, law firm,
accountant or accounting firm; provided, however, that such services must not be
in connection with the offer or sale of securities in a capital-raising
transaction.
III. Effective Date of the Plan.
The effective date of this Plan is April 7, 1998.
IV. Administration of the Plan.
The Board of Directors will be responsible for the administration of this
Plan, and will grant Awards under this Plan. Subject to the express provisions
of this Plan, the Board of Directors shall have full authority and sole and
absolute discretion to interpret this Plan, to prescribe, amend and rescind
rules and regulations relating to it, and to make all other determinations which
it believes to be necessary or advisable in administering this Plan. The
determinations of the Board of Directors on the matters referred to in this
Section shall be conclusive. The Board of Directors shall have sole and absolute
discretion to amend this Plan. No member of the Board of Directors shall be
liable for any act or omission in
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connection with the administration of this Plan unless it resulted from the
member's willful misconduct.
V. Stock Subject to the Plan.
The maximum number of shares of Common Stock as to which Awards may be
granted under this Plan is 350,000 shares. The Board of Directors may increase
the maximum number of shares of Common Stock as to which Awards may be granted
at such time as it deems advisable.
VI. Persons Eligible to Receive Awards.
Awards may be granted only to Participants.
VII. Grants of Awards.
Except as otherwise provided herein, the Board of Directors shall have
complete discretion to determine when and to which Participant Awards are to be
granted, and the number of shares of Common Stock as to which Awards granted to
each Participant will relate. No grant will be made if, in the judgment of the
Board of Directors, such a grant would constitute a public distribution within
the meaning of the Securities Act of 1933, as amended (the "Act"), or the rules
and regulations promulgated thereunder.
VIII. Delivery of Stock Certificates.
As promptly as practicable after authorizing the grant of an Award, All
American Food Group, Inc. shall deliver to the person who is the recipient of
the Award, a certificate or certificates registered in that person's name,
representing the number of shares of Common Stock that were granted. If
applicable, each certificate shall bear a legend to indicate that the Common
Stock represented by the certificate was issued in a transaction which was not
registered under the Act, and may only be sold or transferred in a transaction
that is registered under the Act or is exempt from the registration requirements
of the Act.
IX. Employment.
Nothing in this Plan or in the grant of an Award shall confer upon any
Participant the right to continue in the employ of the Company nor shall it
interfere with or restrict in any way the rights of the Company to discharge any
Participant at any time for any reason whatsoever, with or without cause.
X. Laws and Regulations.
1. The obligation of All American Food Group, Inc. to sell and deliver
shares of Common Stock on the grant of an Award under this Plan shall be subject
to the condition that counsel for All American Food Group, Inc. be satisfied
that the sale and delivery thereof will not violate the Act or any other
applicable laws, rules or regulations.
2. This Plan is intended to meet the requirements of Rule 16b-3 in order to
provide officers and directors with certain exemptions from Section 16(b) of the
Securities Exchange Act of 1934, as amended.
XI. Withholding of Taxes.
If subject to withholding tax, the Company shall be authorized to withhold
from an Participant's salary or other cash compensation such sums of money as
are necessary to pay the Participant's withholding tax. The Company may elect to
withhold from the shares to be issued hereunder a sufficient number of shares to
satisfy the Company's withholding obligations. If the Company becomes required
to pay withholding taxes to any federal, state or other taxing authority as a
result of the granting of an Award and the Participant fails to provide the
Company with the funds with which to pay that withholding tax, the Company may
withhold up to 50% of each payment of salary or bonus to the Participant (which
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will be in addition to any other required or permitted withholding), until the
Company has been reimbursed for the entire withholding tax it was required to
pay.
XII. Termination of the Plan.
The Board of Directors may suspend or terminate this Plan at any time or
from time to time, but no such action shall adversely affect the rights of a
person granted an Award under this Plan prior to that date.
XIII. Delivery of Plan.
A copy of this Plan shall be delivered to all participants, together with a
copy of the resolution or resolutions of the Board of Directors authorizing the
granting of the Award and establishing the terms, if any, of participation.
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EXHIBIT 5.1
April 27, 1998
All American Food Group, Inc.
9 Law Drive
Fairfield, NJ 07006
Gentlemen:
We are members of the bar of the State of New Jersey. For that reason,
you have requested our opinion for the use of All American Food Group, Inc., a
New Jersey corporation (the "Company"), in connection with the registration
under the Securities Act of 1933, as amended, and the Rules and Regulations
promulgated thereunder, of 350,000 shares of common stock issuable under the
All American 1998 Consultant Stock Plan.
We have examined the Company's Registration Statement on Form S-8 in the
form to be filed with the Securities and Exchange Commission on or about
April 27, 1998 (the "Registration Statement"). We further have examined such
corporate records of the Company as we deemed relevant to the opinion hereafter
expressed.
Based on the foregoing examination, we are of the opinion that, under New
Jersey law, upon issuance and sale in the manner described in the Registrant
Statement, the shares of common stock covered by the Registration Statement
will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
VERY TRULY YOURS,
JOHN L. MILLING
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
All American Food Group, Inc. on Form S-8 of our report, dated February 7,
1998, on our audits of the consolidated financial statements of All American
Food Group as at October 31, 1997 and 1996, and for the years ended October 31,
1997 and October 31, 1996.
DelSanto and DeFreitas
Closter, New Jersey
April 23, 1998
12
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POWERS OF ATTORNEY
EXHIBIT 24.1
We, the undersigned, members of the Board of Directors of All American Food
Group, Inc. (the "Company"), hereby constitute and appoint Andrew Thorburn as
our true and lawful attorney-in-fact and agent, with full power of substitution,
as attorney-in-fact and agent for the undersigned. Andrew Thorburn, as
attorney-in-fact and agent may act for the undersigned, for and in our stead, in
any and all capacities, to sign on our behalf any and all Registration
Statements on Form S-8 with respect to common stock issued or to be issued under
the All American Food 1998 Consultant Stock Plan, and to execute any amendments
thereto (including post-effective amendments) or certificates that may be
required in connection with such registration statements, and to file the same,
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, with the full power and authority to do
and perform each and every act and thing necessary or advisable to be done in
connection therewith, as fully to all intents and purposes as the undersigned
might or could do in person. The undersigned hereby ratify and confirm all that
Andrew Thorburn, as attorney-in-fact and agent, or his substitute, may lawfully
do or cause to be done by virtue hereof.
Dated: April 27, 1998
/s/ John Chitvanni
JOHN CHITVANNI
/s/ Anthony Foster
ANTHONY FOSTER
/s/ Thomas Lisker
THOMAS LISKER
