SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARTHUR TREACHER'S, INC.
Utah
(State or other jurisdiction of incorporation or organization)
34-1413104
(Employer Identification No.)
7400 Baymeadows Way, Suite 300, Jacksonville,
Florida 32256 (Address of principal executive
offices)
Non-Qualified Stock Option Agreements
(Full title of the plan)
Steven Schuster, Esq.
McLaughlin & Stern, LLP
260 Madison Avenue
New York, NY 10016
(212) 448-1100
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Title of Securities to be Amount to be Proposed maximum offering Proposed maximum aggregate Amount of
registered registered price per share(1) offering price(1) registration fee
Common Stock, par value 110,000 shares $2.65 $291,500 $85.99
$.01 per share
Common Stock, par value
$.01 per share 45,000 shares $3.37 $151,650 $44.74
TOTAL 155,000 shares $443,150 $130.73
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(1) The proposed maximum offering price and maximum aggregate offering
price is the assumed price of the shares of common stock available
under the non-qualified stock option agreements (the "Option
Agreements") being registered hereunder, based upon the price at which
the options may be exercised, in accordance with Rules 457(h)
promulgated under the Securities Act of 1933.
This Registration Statement, including all exhibits and attachments,
contains 10 pages. The exhibit index may be found on page 7 of the consecutively
numbered pages of the Registration Statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information
(a) General Plan Information
The documents containing the information specified in this Item will be
sent or given to individuals who have been granted awards under certain
non-qualified stock option agreements (the "Option Agreements") by Arthur
Treacher's, Inc., a Utah corporation (the"Registrant" or "Company") and were
adopted by the Board in August 1996 and March 1997 and are being filed with, or
included in, this Registration Statement on Form S-8 (the "Registration
Statement") in accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission").
The name of the Registrant whose securities are to be offered pursuant
to the Option Agreements is Arthur Treacher's, Inc.
In August 1996, the Board of Directors authorized Option Agreements
with respect to the issuance of 167,500 shares of Common Stock. Agreements with
respect to 110,000 shares of Common Stock remain in effect. Each Option
Agreement provides for the grant of five-year options which do not qualify as
incentive stock options under the Internal Revenue Code of 1986, as amended, to
be issued to employees. The Company has reserved 110,000 shares of Common Stock
for issuance under the Option Agreements. Each option becomes exercisable with
respect to 20 percent of the total shares per year. The exercise price under
each Option Agreement is $2.65 per share.
In March 1997, the Board of Directors authorized Option Agreements with
respect to the issuance of 45,000 shares of Common Stock. Each Option Agreement
provides for the grant of five-year options which do not qualify as incentive
stock options under the Internal Revenue Code of 1986, as amended, to be issued
to officers and employees. The Company has reserved 45,000 shares of Common
Stock for issuance under the Option Agreement. Each option becomes exercisable
with respect to 20 percent of the total shares per year. The exercise price
under each Agreement is $3.37 per share.
The Board of Directors determines the persons to whom options are
granted, number of shares of stock subject to an option, the period during which
options may be exercised and the exercise price thereof.
(b) Securities to be Offered
The Option Agreements provide for options with respect to, in the
aggregate, up to 155,000 shares of Common Stock, $.01 par value.
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(c) Employees Who May Participate in the Plan
The optionees under the Option Agreement are the Company's employees.
(d) Purchase of Securities pursuant to the Plan and Payment for Securities
Offered
(1) The purchase price of each share for which a non-qualified option
is granted and number of shares, is within the Board's discretion, provided that
the purchase price is not less than the market price per share of Common Stock
at the date of grant.
(2) Each Option Agreement provides that payment for shares of Common
Stock purchased upon the exercise of an option (or any portion thereof) granted
shall be made in full, in cash, at the time of such exercise.
(3) Not applicable
(4) Not applicable
(5) Not applicable
(6) The securities will be purchased from the Company
(e) Resale Restrictions
None
(f) Tax Effects of Plan participation
Not Applicable
(g) Investment of Funds
Not applicable
(h) Withdrawal from the Plan; Assignment of Interest
The option shall terminate and shall no longer be exercisable as to each
individual annual allotment of option shares on the date five (5) years from the
date of vesting of the options. The option is not transferable.
(i) Forfeitures and Penalties
Not applicable
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(j) Charges and Deductions and Liens Therefor
Not applicable
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will be
sent to the participant which has been granted the award by the Registrant and
are not being filed with, or included in, this Registration Statement in
accordance with the rules and regulations of the Commission.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
1. The description of the shares of common stock, par value $.01 per
share ("the Common Stock"), contained in the Registrant's Registration Statement
on Form 10-SB/A3 filed with the Commission on August 11, 1997 (File number
000-22315) pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which is incorporated by reference.
2. The Registrant's Annual Report on Form 10-KSB for the fiscal year
June 30, 1997 filed on September 29, 1997.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 29, 1997 filed on February 11, 1998.
4. All documents filed by the Registrant with the Commission pursuant
to Sections 13 (a), 13 (c), 14 or 15 (d) of the Exchange Act subsequent to the
date hereof and prior to the filing of a post-effective amendment, which
indicate that all securities offered have been sold or which registers all such
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing such documents.
Any statement contained herein or in a document incorporated or deemed to be
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 other subsequently filed
document which also is incorporated or deemed to be incorporated be 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
The description of the shares of Common Stock contained in the
Registrant's Registration Statement on Form 10-SB/A3 filed with the Commission
on August 11, 1997 (File number 000- 22315) pursuant to Section 12(g) of the
Exchange Act, which is incorporated by reference. Such shares are traded on the
NASDAQ SmallCap Market under the symbol "ATCH."
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Item 5. Interests of Named Experts and Counsel
The legality of the Common Stock being offered hereby will be passed
upon for the Company by McLaughlin & Stern, LLP, New York, New York. Steven
Schuster, a member of the firm, owns 60,000 shares of Common Stock of the
Company. McLaughlin & Stern, LLP, owns 24,606 shares of Common Stock and
warrants to purchase 5,000 shares at a price of $3.00 per share.
Item 6. Indemnification of Directors and Officers
The Utah Revised Business Corporation Act of 1992 (the "Model Act")
provides that the statutory indemnification provisions are not exclusive and a
corporation, through its by-laws, may authorize indemnification in circumstances
that go beyond those permitted by statue, subject to certain limitations. The
Model Act does not, however, permit any indemnification to the director of
officer where: (a) amount of financial benefit received by director to which he
was not entitled; (b) intentional infliction of harm on corporation or
shareholders; (c) unlawful distribution; or (d) intentional violation of
criminal law. The Company's By-laws provide for indemnification of officers and
directors for any action taken or failure to take action as the officer and/or
director so long as the officer and/or director reasonably believed that his
conduct was in, or not opposed to, the Company's best interests, and not in
violation of the Model Act.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
3(i) * Certificate of Incorporation
3(ii) *By-Laws
5 Opinion of McLaughlin & Stern, LLP regarding the legality of the securities
being registered.
10.13 *Form of Option Certificate
*Included in, and incorporated by reference to, the Registrant's Registration
Statement on Form 10- SB/A3 filed with the Commission on August 11, 1997 (File
number 000-22315) pursuant to Section 12(g) of the Exchange Act.
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Item 9. Undertakings.
The 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 to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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 hereby which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, as amended, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities offered indemnification for liabilities arising
under the Securities Act of 1933, as amended, 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 Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by Registrant of expenses incurred or paid by a director, officer or
controlling person of 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 Securities
Act of 1933, as amended, 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 Town of Jacksonville, State of Florida on this 17th day
of February, 1998.
ARTHUR TREACHER'S, INC.
By: /s/R. Frank Brown
R. Frank Brown
President, Treasurer
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 and on the dates indicated.
Signature Title Date
/s/R. Frank Brown President, Chief Executive February 17, 1998
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R. Frank Brown Officer, Treasurer Officer,
Director
/s/Bruce R. Galloway Chairman of the Board February 17, 1998
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Bruce R. Galloway of Directors
/s/Skuli Thorvaldsson Vice Chairman of the Board February 27, 1998
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Skuli Thorvaldsson
/s/Fred Knol Director February 27, 1998
Fred Knoll
/s/Heinz Schimmelbusch Director February 27, 1998
Heinz Schimmelbusch
/s/ Dennis S. Bookshester Director February 27, 1998
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Dennis S. Bookshester
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EXHIBIT 5
McLAUGHLIN & STERN, LLP
260 Madison Avenue
New York, New York 10016
(212) 448-1100
FAX (212) 448-0066
New Jersey Office Millbrook Office
411 Hackensack Avenue Franklin Avenue
Hackensack, NJ 07601 P.O. Box 1369
(201) 488-1105 Millbrook, NY 12545
FAX (201) 488-3679 (914) 677-5700
FAX (914) 677-0097
March 3, 1998
United States Securities &
Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Arthur Treacher's, Inc.
Gentlemen:
Reference is made to the Registration Statement on Form S-8 (the
"Registration Statement"), filed with the Securities and Exchange Commission by
Arthur Treacher's, Inc. (the "Company").
We hereby advise you that we have examined originals or copies
certified to our satisfaction of the Certificate of Incorporation and amendments
thereto and the By-Laws of the Company, minutes of the meetings of the Board of
Directors and such other documents and instruments, and we have made such
examination of law as we have deemed appropriate as the basis for the opinions
hereinafter expressed.
Based on the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Utah.
2. The 155,000 shares of Common Stock underlying the "Non-Qualified
Stock Option Agreements," which are due to be sold pursuant to the Registration
Statement have been duly and validly authorized and, when issued, will be
validly issued, fully paid and non-assessable.
In addition, we hereby consent to the reference to our firm under the
caption "Interests of Named Experts and Counsel" in the prospectus forming part
of such Registration Statement and to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
McLaughlin & Stern, LLP
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