<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 17, 1998
REGISTRATION NO. 333-56899
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DIVERSIFIED FOOD GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 2099 36-4230573
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NO.)
INCORPORATION OR CLASSIFICATION CODE NO.)
ORGANIZATION)
6901 NORTH HAMLIN AVENUE, LINCOLNWOOD, ILLINOIS 60645, (847) 763-9500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ANDREW J. ZAHN
CHIEF EXECUTIVE OFFICER
DIVERSIFIED FOOD GROUP, INC.
6901 NORTH HAMLIN AVENUE, LINCOLNWOOD, ILLINOIS 60645, (847) 763-9500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
DAVID J. KAUFMAN, ESQ. JOHN D. WATSON, JR., ESQ.
KATTEN MUCHIN & ZAVIS LATHAM & WATKINS
525 WEST MONROE STREET, SUITE 1600 1001 PENNSYLVANIA AVE., N.W., SUITE
CHICAGO, ILLINOIS 60661-3693 1300
(312) 902-5200 WASHINGTON, D.C. 20004
(202) 637-2200
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration for the
same offering: [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO
SECTION 8(A), MAY DETERMINE.
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THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT IS BEING FILED SOLELY TO
INCLUDE EXHIBIT 16 TO THE REGISTRATION STATEMENT.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is an estimate of the approximate amount of fees and
expenses (other than underwriting commissions and discounts) payable by the
Registrant in connection with the issuance and distribution of the Common
Stock pursuant to the Prospectus contained in this Registration Statement. The
Registrant will pay all of these expenses.
<TABLE>
<CAPTION>
APPROXIMATE
AMOUNT
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<S> <C>
Securities and Exchange Commission registration fee........... $17,700
NASD filing fee............................................... 6,500
New York Stock Exchange application fee....................... *
Accountants' fees and expenses................................ *
Blue Sky fees and expenses.................................... *
Legal fees and expenses....................................... *
Transfer Agent and Registrar fees and expenses................ *
Printing and engraving........................................ *
Miscellaneous expenses........................................ *
-------
Total..................................................... $ *
=======
</TABLE>
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* To be provided by amendment
All expenses other than the Securities and Exchange Commission registration
fee and NASD filing fee are estimated.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VIII of the Registrant's Certificate of Incorporation will provide
that the Registrant shall indemnify its directors to the full extent permitted
by the General Corporation Law of the State of Delaware and may indemnify its
officers and employees to such extent, except that the Registrant shall not be
obligated to indemnify any such person (i) with respect to proceedings, claims
or actions initiated or brought voluntarily by any such person and not by way
of defense, or (ii) for any amounts paid in settlement of an action
indemnified against by the Registrant without the prior written consent of the
Registrant. Prior to consummation of the Offering, the Registrant will enter
into indemnity agreements with each of its directors. These agreements may
require the Registrant, among other things, to indemnify such directors
against certain liabilities that may arise by reason of their status or
service as directors, to advance expenses to them as they are incurred,
provided that they undertake to repay the amount advanced if it is ultimately
determined by a court that they are not entitled to indemnification, and to
obtain directors' liability insurance if available on reasonable terms.
In addition, Article VIII of the Registrant's Amended and Restated
Certificate of Incorporation will also provide that a director of the
Registrant shall not be personally liable to the Registrant or its
stockholders for monetary damages for breach of his or her fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) for willful or negligent conduct in paying dividends or
repurchasing stock out of other than lawfully available funds or (iv) for any
transaction from which the director derives an improper personal benefit.
Reference is made to Section 145 of the General Corporation Law of the State
of Delaware which provides for indemnification of directors and officers in
certain circumstances.
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Prior to the effective date of the Offering, the Registrant intends to
purchase a directors' and officers' liability insurance policy.
Under the terms of the Underwriting Agreement, the Underwriters have agreed
to indemnify, under certain conditions, the Registrant, its directors, certain
of its officers and persons who control the Company within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), against certain
liabilities.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The following information reflects a 1,000 for 1 split of Diversified Food
Group, L.L.C.'s (the "Limited Liability Company") membership interests as of
January 1, 1998. It does not reflect the transactions to be affected
immediately prior to the consummation of the Offering described in the
Prospectus under the heading "Company History and Acquisitions--The
Conversion." No underwriters were involved in any of the transactions
described below. All of the securities issued in the foregoing transactions
are membership interests ("Membership Interests") in the Limited Liability
Company and were issued by the Limited Liability Company in reliance upon the
exemption of registration provided by Regulation 701 and Section 4(2) of the
Securities Act of 1933, as amended, including Regulation D promulgated
thereunder.
1. On March 25, 1996 the Limited Liability Company was formed with
contributions totalling $775,000 from Lawrence Gould ("Gould") and Andrew Zahn
("Zahn"). The Limited Liability Company issued a total of 1,000,000 Membership
Interests in this transaction.
2. As of December 30, 1996, Lowell Kraff ("Kraff") contributed $198,000 to
the Limited Liability Company for 142,850 Membership Interests. In addition,
effective as of such date, Dennis Kessler contributed $7,920 (in addition
$31,680 was paid in 1998 and another $7,920 in the quarter ended April 3,
1998) for 6,000 Membership Interests.
3. Effective as of January 4, 1997, the Limited Liability Company issued:
(i) 5,740 Membership Interests to Katten Muchin & Zavis for $100; (ii) 5,740
Membership Interests to Primus Capital Fund III Limited Partnership for $100;
and (iii) 5,760 Membership Interests to Walter F. McLallen, IV for $5,700.
4. On October 7, 1997, the Limited Liability Company issued: (i) 72,810
Membership Interests to the Charles Mok Trust dated 2/14/89 in exchange for
250 shares of Restauranic, Inc. and a promissory note from Restauranic, Inc.;
(ii) 72,810 Membership Interests to the Wiley-Mok Trust dated 3/9/89 for 250
shares of Restauranic, Inc. and a promissory note from Restauranic, Inc.;
(iii) 31,000 Membership Interests to Gail Robinson in return for her 5%
ownership interest in Classic Confectionery, L.L.C. and all other rights she
had as a member thereof; (iv) 24,190 Membership Interests to Corey Rogin in
return for her 5% ownership interest in Classic Confectionery, L.L.C. and all
other rights she had as a member thereof; and (v) 24,190 Membership Interests
to Michelle Robinson in return for her 5% ownership interest in Classic
Confectionery, L.L.C. and all other rights she had as a member thereof.
5. As of October 15, 1997, the Limited Liability Company issued a note to
Cohen's Famous Frozen Foods, Inc. in the amount of $1,218,280 convertible into
38,300 Membership Interests upon an initial public offering of the Limited
Liability Company or a successor entity thereto in connection with the
acquisition of all the assets of Cohen's Famous Frozen Foods, Inc. In
addition, in connection with such acquisition and pursuant to employments
agreements dated as of October 15, 1997, the Limited Liability Company issued
options to acquire Membership Interests to: (i) Sid Cohen with the right to
purchase 11,930 Membership Interests at an exercise price of $47; (ii) Edward
Cohen with the right to purchase 11,930 Membership Interests at an exercise
price of $47; and (iii) Neil Cohen with the right to purchase 39,760
Membership Interests at an exercise price of $47.
6. On October 23, 1997, in connection with certain financing, the Limited
Liability Company issued the following warrants to buy Membership Interests:
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(i) Purchase Warrant in favor of Madeleine L.L.C. to purchase 142,040
Membership Interests at an exercise price of $7.04 per Interest;
(ii) Purchase Warrant in favor of Madeleine L.L.C. to purchase 23,670
Membership Interests at an exercise price of $7.04 per Interest; and
(iii) Purchase Warrants in favor of Canadian Imperial Bank of Commerce to
purchase 48,460 Membership Interests at an exercise price of $32 per
Interest.
7. On February 27, 1998, the Limited Liability Company issued a warrant in
favor of Madeleine L.L.C. to purchase 164,587.25 Membership Interests at an
exercise price of $7.04 per Membership Interest.
8. On March 5, 1998, the Limited Liability Company issued 38,617 Membership
Interests to James Webb as part of the purchase of 100% of the stock of Sweet
Shop Candies, Inc. from Mr. Webb. The Limited Liability Company valued the
Membership Interests issued to Webb at $1,815,000.
9. The Limited Liability Company issued options to the following employees
to acquire the following number of Membership Interests: (i) on March 15,
1997, to Trevor Toppen, to acquire 26,318 Membership Interests at an exercise
price of $21.57 per Interest; (ii) on January 4, 1998, to Philip Gay to
acquire 98,765 Membership Interests at an exercise price of $47 per Interest;
(iii) on March 15, 1998 to Phillip Sexauer, to acquire 10,000 Membership
Interests at an exercise price of $47 per Interest; (iv) on February 3, 1998
to Michael Ricciardi, to acquire 26,318 Membership Interests at an exercise
price of $47 per Interest; and (v) on March 5, 1998, to Paul Anderson, to
acquire 4,000 Membership Interests at an exercise price of $47 per Interest.
No underwriters were involved in any of the transactions described above.
All of the securities issued in the foregoing transactions were issued by the
Registrant in reliance upon the exemption from registration available under
Section 4(2) of the Securities Act, including Regulation D promulgated
thereunder.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS.
<TABLE>
<C> <S> <C>
1* Form of
Underwriting
Agreement.
3.1** Form of
Certificate of
Incorporation
of the
Registrant.
3.2** Form of By-
laws of the
Registrant.
4.1* Specimen stock
certificate
representing
Common Stock.
5* Opinion of
Katten Muchin
& Zavis as to
the legality
of the
securities
being
registered
(including
consent).
10.1** Asset Purchase
Agreement
dated as of
October 9,
1997 among the
Registrant,
Cohen's Famous
Frozen Foods,
Inc., Sydney
Cohen and
Edward Cohen.
10.2** Stock Purchase
Agreement
dated February
23, 1998
between the
Registrant,
Sweet Shop
Candies, Inc.
and James H.
Webb.
10.3** Form of
Indemnification
Agreement
10.4** 1998 Employee
Stock Option
Plan
10.5** Non-Employee
Director Stock
Option Plan
10.6** Credit
Agreement
dated as of
October 16,
1997 among the
Registrant, as
borrower, the
several
lenders, as
named therein
and Canadian
Imperial Bank
of Commerce as
agent.
10.7** Term Loan
Agreement
dated as of
October 23,
1997 by and
among the
Registrant and
Madeleine
L.L.C., as
amended.
10.8** Registration
Rights
Agreement
dated as of
October 23,
1997, between
the Registrant
and Madeleine
L.L.C.
</TABLE>
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<TABLE>
<C> <S> <C>
10.9** Ownership Interest Purchase Warrant dated as of October
23, 1997 between the Registrant and Madeleine L.L.C.
10.10** Ownership Interest Purchase Warrant dated as of October
23, 1997 between the Registrant and Madeleine L.L.C.
10.11** Ownership Interest Purchase Warrant dated as of February
27, 1998 between the Registrant and Madeleine L.L.C.
16 Letter re change in certifying accountants.
21** Subsidiaries of the Registrant
23.1** Consent of BDO Seidman, LLP with respect to financial
statements of the Registrant.
23.2** Consent of BDO Seidman, LLP with respect to financial
statements of Cohen.
23.3** Consent of Fishman Ostroff Ruchowitz Hausman with
respect to financial statements of Cohen.
23.4** Consent of Weaver and Tidwell, LLP with respect to
financial statements of Sweet Shop.
23.5** Consent of Altschuler, Melvoin and Glasser LLP with
respect to financial statements of Restauranic and the
Registrant.
23.6 Consent of Katten Muchin & Zavis (contained in its
opinion to be filed as Exhibit 5 hereto).
24** Power of Attorney (included on signature page hereto).
27** Financial Data Schedule
</TABLE>
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* To be filed by amendment.
** Previously filed.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To provide to the Underwriters at the closing specified in the
underwriting agreement, certificates in such denominations and registered
in such names as required by the Underwriters to permit prompt delivery to
each purchaser.
(2) 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 Registrant has been advised that, in the opinion of the
Securities and Exchange 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 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 and will be
governed by the final adjudication of such issue.
(3) For purposes of determining any liability under the Securities Act,
(i) the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective and (ii)
each post-effective amendment that contains a form of prospectus 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.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE
CITY OF CHICAGO, AND STATE OF ILLINOIS ON THE 17TH DAY OF JUNE, 1998.
Diversified Food Group, Inc.
/s/ Andrew J. Zahn
By: _________________________________
Andrew J. Zahn
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON JUNE 17, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
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<S> <C>
/s/ Andrew J. Zahn Chief Executive Officer (Principal
___________________________________________ Executive Officer) and Chairman of the
Andrew J. Zahn Board of Directors
Philip J. Sexauer* Chief Financial Officer (Principal
___________________________________________ Financial and Accounting Officer)
Philip J. Sexauer
Lawrence R. Gould* Director
___________________________________________
Lawrence R. Gould
</TABLE>
/s/ Andrew J. Zahn
*By:____________________________
Andrew J. Zahn
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<PAGE>
Exhibit 16
[LOGO OF ALTSCHULER, MELVOIN AND GLASSER LLP]
Altschuler, Melvoin and Glasser LLP
Certified Public Accountants and Consultants
Chicago
Los Angeles
New York
Phoenix
Tampa
Washington, D.C.
June 16, 1998
Securities and Exchange Commission
Washington, DC 20549
Re: Diversified Food Group, Inc.
Form S-1 Registration Statement Filed June 15, 1998
Dear Sir or Madam:
We have read the disclosure under "change in independent accountants" of the
Form S-1 Registration Statement of Diversified Food Group, Inc. filed June 15,
1998, and agree with the statements contained therein.
Very truly yours,
/s/ Altschuler, Melvoin and Glasser LLP
cc: Diversified Food Group, Inc.
30 South Wacker Drive, Suite 2600, Chicago, Illinois 60606-7494
312.207.2800 Fax 312.207.2954 http://www.amgnet.com
Associated Worldwide With Summit International Associates, Inc.
