<PAGE>
As filed with the Securities and Exchange Commission on June 30, 1998
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Aurora Foods Inc.
(Exact name of Registrant as specified in its charter)
Delaware 94-3303521
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
456 Montgomery Street, Suite 2200, San Francisco, CA 94104
(Address of Principal Executive Offices) (Zip Code)
Aurora Foods Inc. 1998 Incentive Plan
(Full title of the plan)
and
Aurora Foods Inc. 1998 Employee Stock Purchase Plan
(Full title of the plan)
Ian R. Wilson
Chairman of the Board
and Chief Executive Officer
Aurora Foods Inc.
456 Montgomery Street, Suite 2200
San Francisco, CA 94104
(Name and address of agent for service)
(415) 982-3019
(Telephone number, including area code, of agent for service)
Copy to:
Nancy Young, Esq.
Richards & O'Neil, LLP
885 Third Avenue
New York, New York 10022-4873
(212) 207-1200
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registra-
Registered Registered1 Per Share2 Price2 tion Fee
<S> <C> <C> <C> <C>
Common Stock, 3,500,000(3) shares $23.00 $80,500,000 $23,748
par value
$.01 per share
Common Stock, 200,000(4) shares $23.00 $ 4,600,000 $1,357
par value -------
$.01 per share -------
$25,105
(Total Registration Fee)
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in this
Part I are not required to be filed by Aurora Foods Inc. (the "Company") with
the Securities and Exchange Commission.
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
Company's 1998 Incentive Plan (the "1998 Incentive Plan") and the Company's
1998 Employee Stock Purchase Plan (the "1998 ESPP").
(2) The proposed maximum aggregate offering price, estimated solely for the
purpose of calculating the registration fee, has been computed pursuant to
Rule 457(h) promulgated under the Securities Act and is based on the
Pre-Effective Amendment No. 4 to the Aurora Foods Inc. S-1 Registration
Statement, dated June 23, 1998.
(3) Represents shares issuable under the 1998 Incentive Plan.
(4) Represents shares issuable under the 1998 ESPP.
2
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Exchange Commission (the "Commission") as part of this Form S-8 Registration
Statement (the "Registration Statement") pursuant to Rule 424 under the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been previously filed by the Company with the
Commission and are incorporated in this Registration Statement by reference:
a. The Company's latest prospectus filed pursuant to Rule 424(b) (and
Rule 430(A) as referenced therein) that contains audited financial statements
for the Company's latest fiscal year for which such statements have been filed,
filed June 29, 1998.
b. The Company has not filed reports pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") since the end of the
fiscal year covered by the registration document referred to in (a) above.
c. The description of the Company's Common Stock contained in its
Registration Statements on Form 8-A, each filed with the Commission on
June 23, 1998.
All documents subsequently filed by the Company with the Commission
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 such time as the Company files
a post-effective amendment to this Registration Statement indicating that all
securities offered hereby have been sold, or which deregisters all such
securities then remaining unsold, 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. 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 other subsequently filed document which
also is or 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
Not applicable.
3
<PAGE>
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") permits the Company to indemnify any person who was or is a party or is
threatened to be made party to a threatened, pending or completed
administrative, investigative, civil or criminal action, suit or proceeding
(other than an action by or in the right of the registrant in question) by
reason of the fact that he is or was a director, officer, employee or agent of
the registrant, or is or was serving at the request of the registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement he actually and
reasonably incurred in connection with such an action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of such registrant (and, in the case of a criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful). In the case of an action by or in the right of the Company, he may
not be indemnified in respect of any claim, issue or matter as to which he was
adjudged liable to the Company unless and only to the extent that the court
determines that he is fairly and reasonably entitled to indemnity for such
expenses as the court shall deem proper.
Article VI of the Company's By-Laws provides, among other things, that the
Company shall indemnify, in the manner and to the fullest extent permitted by
applicable law, any person (or the estate of any person) who was or is a party
to, or is threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether or not by or in the right of the Company,
and whether civil, criminal, administrative, investigative or otherwise, by
reason of the fact that such person is or was or has agreed to be a director or
officer of the Company, or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees and expenses),
judgments, fines, penalties and amounts paid in settlement actually and
reasonably incurred (and not otherwise recovered) by such person in connection
with the investigation, preparation to defend or defense of such action, suit,
claim or proceeding. To the extent and in the manner provided by applicable
law, any such expenses may be paid by the Company in advance of the final
disposition of such action, suit or proceeding even if such director or officer
is alleged to have not met the applicable standard of conduct required under or
is alleged to have committed conduct so that, if true, such director or officer
would not be entitled to indemnification under said Article VI, upon receipt of
an undertaking, which need not be secured, by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Company as authorized in said Article VI,
provided, however, that the foregoing shall not require the Company to indemnify
or advance expenses to any person in
4
<PAGE>
connection with any action, suit, proceeding, claim or counterclaim initiated by
or on behalf of such person. Unless otherwise permitted by applicable law, the
indemnification provided for in said Article VI shall be made only as authorized
in the specific case upon a determination, made in the manner provided by
applicable law, that indemnification of such director or officer has met the
standards required by law. The Company may, to the fullest extent permitted by
applicable law, purchase and maintain insurance on behalf of any person who is
or was or has agreed to be a director or officer of the Company, or is or was
serving at the request of the Company as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise against any
liability which may be asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Company would
have the power to indemnify him against such liability under applicable law.
The indemnification and advancement of expenses provided for in said Article VI
shall not be deemed to limit the right of the Company to indemnify or make
advances to any other such person for any expenses (including attorneys' fees
and expenses), judgments, fines or other amounts to the fullest extent permitted
by applicable law, nor shall they be deemed exclusive of any other rights to
which any such person seeking indemnification or advancement of expenses may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall inure to the
benefit of the heirs and legal representatives of such person. Any repeal or
modification of said Article VI or any repeal or modification of relevant
provisions of the DGCL or any other applicable laws shall not in any way
diminish any rights to indemnification of such director or officer with respect
to any acts or omissions by such person occurring prior to such repeal or
modification, or the obligations of the Company arising hereunder. If said
Article VI or any portion thereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Company shall nevertheless
(i) indemnify each director or officer of the Company as to costs, charges and
expenses (including attorneys' fees and expenses), judgments, fines and amounts
paid in settlement with respect to any proceeding and (ii) advance expenses
(including attorneys' fees and expenses), in each case to the fullest extent
permitted by any applicable portion of said Article VI that shall not have been
invalidated and to the full extent permitted by applicable law.
Articles Eighth and Ninth of the Certificate of Incorporation of the
Company provide that the Company's officers and directors shall not be liable to
the Company except in certain circumstances and that the Company shall indemnify
the officers and directors of the Company except in certain circumstances.
The Company and each of its directors and the Chief Financial Officer of
the Company have each entered into an indemnification agreement pursuant to
which the Company indemnifies such person to the fullest extent permitted under
its By-Laws providing, among other things, for the payment, in advance by the
Company, of expenses incurred by any such person in connection with an
investigation, preparation to defend or defense of an action, suit,
5
<PAGE>
claim or proceeding which arises by reason of the fact that such person agreed
to be a director or an officer of the Company, as the case may be.
The foregoing statements are subject to the detailed provisions of
Section 102(b)(7) of the DGCL, Articles Eighth and Ninth of the Certificate of
Incorporation of the Company and Article VI of the By-Laws of the Company, as
applicable.
The Company maintains directors' and officers' liability insurance which
insures against certain liabilities that directors and officers of the Company
may incur in such capacities.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following exhibits are filed (except where otherwise indicated) as part
of this Registration Statement:
Exhibit No. Description
4.1 Securityholders Agreement dated as of April 8, 1998, among the parties
listed on Schedule A attached thereto (filed as Exhibit 4.2 to the
Company's Registration Statement on the Pre-Effective Amendment No. 4
to Form S-1, Registration No. 333-50681, filed with the Commission on
June 23, 1998 ("Amendment No. 4 to S-1"), and incorporated herein by
reference).
4.2 Aurora Foods Inc. 1998 Incentive Plan (filed as Exhibit 10.47 to the
Amendment No. 4 to S-1 and incorporated herein by reference).
4.3 Aurora Foods Inc. 1998 Employee Stock Purchase Plan (filed as
Exhibit 10.2 to the Amendment No. 4 to S-1, and incorporated herein by
reference).
5.1 Opinion of Richards & O'Neil, LLP as to the legality of the securities
being registered under the Company's 1998 Incentive Plan and the 1998
Employee Stock Purchase Plan.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Price Waterhouse LLP.
23.4 Consent of Deloitte & Touche LLP.
23.5 Consent of Coopers & Lybrand LLP.
23.6 Consent of Price Waterhouse LLP.
23.7 Consent of Richards & O'Neil, LLP (included in Exhibit 5.1 hereto).
6
<PAGE>
Item 9. Undertakings
(a) The Company 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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
of this section 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 Company pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 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.
7
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities 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 Company 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 and will be governed by the final
adjudication of such issue.
8
<PAGE>
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 City of San Francisco, State of California, on this 30th day
of June, 1998.
AURORA FOODS INC.
By:/s/ Ian R. Wilson
-----------------
Ian R. Wilson
Chairman of the Board and
Chief Executive Officer
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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Ian R. Wilson Chairman of the Board and June 30, 1998
- ---------------------- Chief Executive Officer
Ian R. Wilson (Principal Executive Officer)
/s/ James B. Ardrey Vice Chairman and Director June 30, 1998
- ----------------------
James B. Ardrey
/s/ M. Laurie Cummings Chief Financial Officer and June 30, 1998
- ---------------------- Secretary (Principal Financial
M. Laurie Cummings Officer and Principal
Accounting Officer)
/s/ Clive Apsey Director June 30, 1998
- ----------------------
Clive Apsey
/s/ Charles Ayres Director June 30, 1998
- ----------------------
Charles Ayres
/s/ David E. De Leeuw Director June 30, 1998
- ----------------------
David E. De Leeuw
/s/ Charles J. Delaney Director June 30, 1998
- ----------------------
Charles J. Delaney
</TABLE>
9
<PAGE>
z
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Richard C. Dresdale Director June 30, 1998
- -----------------------
Richard C. Dresdale
/s/ Andrea Geisser Director June 30, 1998
- -----------------------
Andrea Geisser
/s/ Peter Lamm Director June 30, 1998
- -----------------------
Peter Lamm
/s/ Tyler T. Zachem Director June 30, 1998
- -----------------------
Tyler T. Zachem
</TABLE>
10
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4.1 Securityholders Agreement, dated April 8, 1998, among the parties
listed on Schedule A attached thereto (filed as Exhibit 4.2 to the
Company's Registration Statement on the Pre-Effective Amendment No. 4
to Form S-1 ("Amendment No. 4 to S-1"), Registration No. 333-50681,
filed with the Commission on June 23, 1998, and incorporated herein by
reference).
4.2 Aurora Foods Inc. 1998 Incentive Plan (filed as Exhibit 10.47 to the
Amendment No. 4 to S-1, and incorporated herein by reference).
4.3 Aurora Foods Inc. 1998 Employee Stock Purchase Plan (filed as
Exhibit 10.2 to the Amendment No. 4 to S-1, and incorporated herein by
reference).
5.1 Opinion of Richards & O'Neil, LLP as to the legality of the securities
being registered under the Company's 1998 Incentive Plan and the 1998
Employee Stock Purchase Plan.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Price Waterhouse LLP.
23.4 Consent of Deloitte & Touche LLP.
23.5 Consent of Coopers & Lybrand LLP.
23.6 Consent of Price Waterhouse LLP.
23.7 Consent of Richards & O'Neil, LLP (included in Exhibit 5.1 hereto).
11
<PAGE>
EXHIBIT 5.1
FORM OF RICHARDS & O'NEIL, LLP
S-8 OPINION
June , 1998
Aurora Foods Inc.
456 Montgomery Street, Suite 2200
San Francisco, CA 94104
Re: Aurora Foods Inc. Form S-8
Ladies and Gentlemen:
We have acted as counsel for Aurora Foods Inc., a Delaware corporation (the
"Company"), in connection with the issuance of up to 3,500,000 shares (the
"Incentive Option Shares") of the Company's Common Stock, $.01 par value (the
"Common Stock") reserved for issuance upon the exercise of options granted and
to be granted pursuant to the Company's 1998 Incentive Plan (the "Incentive
Plan") and 200,000 shares (the "ESPP Shares") of its Common Stock issuable under
the Company's 1998 Employee Stock Purchase Plan (the "ESPP").
We are familiar with the proceedings taken by the Company in connection
with the Registration Statement and the proposed public offering.
Upon the basis of the foregoing and such other investigations as we have
deemed necessary in connection with this opinion and, assuming that the
Registration Statement No. 333-50681 on Form S-1 of Aurora Foods Inc. becomes
and remains effective, we are of the opinion that the Incentive Option Shares
and the ESPP Shares will, upon sale and delivery thereof in the manner specified
in the Incentive Plan and ESPP, respectively, be legally issued, fully paid, and
nonassessable.
We consent to the fling of this opinion as Exhibit 5.1 to the Company's
Form S-8.
Very truly yours,
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 18, 1998, relating to the
financial statements of Aurora Foods Holdings Inc., appearing on page F-3 of
Aurora Foods Inc. Registration Statement on Pre-Effective Amendment No. 4 to
Form S-1, Registration No. 333-50681.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
San Francisco, California
June 25, 1998
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 22, 1996, relating to the
financial statements of Van de Kamp's and Frozen Desert Product Lines of Pet
Incorporated, appearing on page F-64 of Aurora Foods Inc. Registration
Statement on Pre-Effective Amendment No. 4 to Form S-1, Registration
No. 333-50681.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
San Francisco, California
June 25, 1998
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 14, 1997, relating to the
financial statements of Mrs. Butterworth's Business, a component of CONOPCO,
Inc., appearing on page F-23 of Aurora Foods Inc. Registration Statement on
Pre-Effective Amendment No. 4 to Form S-1, Registration No. 333-50681.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
San Francisco, California
June 25, 1998
<PAGE>
Exhibit 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Aurora Foods Inc. on Form S-8 of our report dated June 9, 1998, on the
Duncan Hines Business of The Procter & Gamble Company, appearing in
Pre-Effective Amendment No. 4 to Registration Statement No. 333-50681 of
Aurora Foods Inc. on Form S-1.
/s/ Deloitte & Touche LLP
Cincinnati, Ohio
June 29, 1998
<PAGE>
Exhibit 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-8 of our
report dated August 20, 1997, on our audits of the statements of assets to be
acquired of the Log Cabin Syrup Business, a component of Kraft Foods, Inc.,
as of December 28, 1996 and December 30, 1995 and the statements of
operations for the years ended December 28, 1996, December 30, 1995 and
December 31, 1994. We also consent to the reference to our firm under the
caption "Experts."
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Chicago, Illinois
June 29, 1998
<PAGE>
Exhibit 23.6
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 23, 1997, relating to the
financial statements of VDK Holdings, Inc., appearing on page F-30 of Aurora
Foods Inc. Registration Statement on Pre-Effective Amendment No. 4 to
Form S-1, Registration No. 333-50681.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
San Francisco, California
June 25, 1998
