As filed with the Securities and Exchange Commission on June 26, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20543
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHOCK FULL O'NUTS CORPORATION
(Exact name of registrant as specified in its charter)
New York
13-0697025
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)
370 Lexington Avenue
New York, New York 10017
(Address of principal executive office) (Zip Code)
CHOCK FULL O'NUTS CORPORATION INCENTIVE COMPENSATION PLAN, AS AMENDED
(Full title of the plan)
Howard M. Leitner
Senior Vice President
Chock Full O'Nuts Corporation
370 Lexington Avenue
New York, New York 10017
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
Copy to:
George Lander, Esq.
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, New York 10022-2605
__________________
CALCULATION OF REGISTRATION FEE
Title of Securities
to be Registered
Amount to be Registered (1)
Proposed Maximum
Offering Price
Per Share (2)
Proposed Maximum
Aggregate
Offering Price
Amount of
Registration Fee
Common Shares (par value $.25 per share) issuable pursuant to Options granted
under the Chock Full O'Nuts Corporation Incentive Compensation Plan as
amended (the "Incentive Plan")
Common Shares subject to options granted under the Incentive Plan (3)
401,000
$6.52
$2,614,520
$771.28
Common Shares issuable pursuant to additional options that may be granted
under the Incentive Plan (4)
78,000
$6.50
$507,000
$149.57
TOTAL:
479,000
$920.85
(1) Plus such additional number of shares of Common Stock as may be
issuable pursuant to the anti-dilution provisions of the Incentive Plan .
(2) Estimated solely for purposes of calculating the registration fee.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted average exercise
price of $6.52 per share for outstanding options to purchase a total of 401,000
shares.
(4) Estimated in accordance with Rule 457(c) and (h), the proposed maximum
offering price per share, proposed maximum aggregate offering price and the
amount of the registration fee are based upon the average of the high and low
prices reported on the New York Stock Exchange on June 25, 1998 with respect
to Shares available for grant under the Incentive Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
NOTE: THE DOCUMENT(S) CONTAINING THE EMPLOYEE BENEFIT PLAN INFORMATION
REQUIRED BY ITEM 1 OF FORM S-8 AND THE STATEMENT OF AVAILABILITY OF REGISTRANT
INFORMATION AND ANY OTHER INFORMATION REQUIRED BY ITEM 2 OF FORM S-8 WILL BE
SENT OR GIVEN TO EMPLOYEES AS SPECIFIED BY RULE 428 UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). IN ACCORDANCE WITH RULE 428 AND
THE REQUIREMENTS OF PART I OF FORM S-8, SUCH DOCUMENTS ARE NOT BEING FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") EITHER AS PART
OF THIS REGISTRATION STATEMENT OR AS PROSPECTUSES OR PROSPECTUS SUPPLEMENTS
PURSUANT TO RULE 424 UNDER THE SECURITIES ACT. THE REGISTRANT SHALL MAINTAIN
A FILE OF SUCH DOCUMENTS IN ACCORDANCE WITH THE PROVISIONS OF RULE 428. UPON
REQUEST, THE REGISTRANT SHALL FURNISH TO THE COMMISSION OR ITS STAFF A COPY OF
COPIES OF ALL OF THE DOCUMENTS INCLUDED IN SUCH FILE.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are hereby incorporated by reference, except as
superseded or modified herein:
1. Annual Report on Form 10-K for the fiscal year ended July 31,
1997;
2. Quarterly Report of Form 10-Q for the quarter ended October 31,
1997
3. Quarterly Report of Form 10-Q for the quarter ended January 31,
1998
4. Quarterly Report of Form 10-Q for the quarter ended April 30,
1998
5. Current Report on Form 8-K, dated December 30, 1997
6. Current Report on Form 8-K, dated May 5, 1998
7. The description of the Common Shares contained in the Company's
Registration Statement on Form 8-A, Registration No. 1-4183 registering such
shares pursuant to Section 12 of the Exchange Act including any amendment or
report updating such description.
All documents filed by the Company 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 the termination of the offering of Common
Shares offered hereby shall be deemed to be incorporated in and made
a part of this Registration Statement by reference from the date of
filing 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 subsequently filed document that is also incorporated by
reference herein modifies or replaces such statement. Any statements
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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Business Corporation Law of the State of New York (the "BCL")
authorizes a New York corporation to provide for indemnification and
advancement of expenses to directors and officers against
liabilities incurred as a result of their service to the corporation
in either derivative suits or third party claims, and against the
expenses of defending the claims, except when and if a judgment or
other final adjudication adverse to the director or officer
establishes that (i) his or her acts were committed in bad faith or
were the result of active and deliberate dishonesty and were
material to the adverse adjudication or (ii) he or she personally
gained a financial profit or other advantage to which he or she was
not legally entitled. Additionally, the statute provides that the
indemnification provided by the BCL shall not be deemed exclusive of
any other rights to which a director or officer seeking indemnification
or advancement of expenses may be entitled whether contained in the
Certificate of Incorporation or the By-Laws or when authorized by the
Certificate of Incorporation or the By-Laws (i) by a resolution of
stockholders, (ii) by a resolution or directors or (iii) by an
agreement providing for such indemnification.
Article ELEVENTH Section 9 of the Certificate of Incorporation of
the Company provides that the Company shall to the fullest extent
permitted by Article 7 of the BCL indemnify each person who is or was
or has agreed to become a director or officer of the Company for the
liabilities and against the types of claims described above. In
addition, Article ELEVENTH, Section 9 provides that the indemnification
granted by said Article shall not be exclusive of any other rights of
indemnification to which any director or officers shall be entitled and
permits additional indemnification to be granted to such officers and
directors (i) by a resolution of stockholders, (ii) by a resolution of
directors or (iii) by an agreement providing for such indemnification.
The Company maintains insurance providing payment either to the Company
for indemnification given its directors and/or officers, or directly to
its officers, for certain liabilities which those persons may incur in
their respective capacities.
In addition as permitted By Section 402(b) of the BCL, Article TWELFTH
of the Certificate of Incorporation of the Company's provides that a
director of the Company shall not be personally liable to this
Registrant or its shareholders for damages for any breach of duty in
such capacity, except for liability if a judgment or other final
adjudication adverse to such director establishes that his acts or
omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that he personally gained in fact a
financial profit or other advantage to which he was not legally
entitled or that his acts violated Section 719 of the BCL.
ITEM 7 EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. INDEX TO EXHIBITS
The following Exhibits are filed as part of this Registration
Statement.
Exhibit No. Description
4.1 Articles of Incorporation (*)
4.2 By-laws (*)
4.3 Indenture dated as of September 15, 1986 between the Company and
Manufacturers Hanover Trust Company ("Manufacturers") (*)
4.4 Form of the Company's 8% Convertible Subordinated Debenture (*)
4.5 Instrument of resignation, appointment and acceptance dated
August 9, 1993 among the Company, Manufacturers and Liberty Bank and Trust
Company of Oklahoma City (*)
4.6 Indenture dated as of April 1, 1987 between the Company and IBJ
Schroder Bank and Trust Company (*)
4.7 Form of the Company's 7% Convertible Senior Subordinated Debenture (*)
5.1 Opinion of Morse Zelnick, Rose & Lander LLP regarding legality of
securities
23.1 Consent of Ernest & Young
23.2 Consent of Morse Zelnick, Rose & Lander LLP (included in Exhibit 5.1)
24 Power of attorney (included on Signatures Pages)
(*) Filed as Exhibit to Form 10-K for the fiscal year ended July 31, 1994 and
incorporated herein by reference.
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;
(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
with or furnished to the Commission by the Registrant 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 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 Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, 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 offering herein, 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 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item
6 of this Registration Statement, 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 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
section, 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to
believes 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
New York, State of New York on June 24, 1998.
CHOCK FULL O'NUTS CORPORATION
By: /s/ Howard M. Leitner
Howard M. Leitner,
Senior Vice President
POWER OF ATTORNEY
We, the undersigned officers and directors of Chock Full O'Nuts
Corporation., hereby severally constitute and appoint Howard M. Leitner
and Marvin I. Haas, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for
us and in our names in the capacities indicated below the Registration
Statement on Form S-8 filed herewith and any and all pre-effective and
post-effective amendments to said Registration Statement, and generally
to do all such things in our names and on our behalf in our capacities
as officers and directors to enable Chuck Full O'Nuts Corporation to
comply with the provisions of the Securities Act, and all requirements
of the Commission, hereby ratifying and confirming our signatures, as
they may be signed by our said attorneys or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature
Title
Date
/s/ Norman E. Alexander
Norman E. Alexander
Chairman of The Board
June 24, 1998
/s/ Marvin I. Haas
Marvin I. Haas
President, Chief Executive Officer and Director
June 24, 1998
/s/ Howard M. Leitner
Howard M. Leitner
Senior Vice President,
Chief Financial and Accounting Officer and Director
June 24, 1998
/s/ Martin J. Cullen
Martin J. Cullen
Vice-President and Director
June 24, 1998
/s/ R. Scott Schafler
R. Scott Schafler
Director
June 24, 1998
/s/ Mark A. Alexander
Mark A. Alexander
Director
June 24, 1998
/s/ Stuart Z. Krinsly
Stuart Z. Krinsly
Director
June 24, 1998
/s/ Henry Salzhauer
Henry Salzhauer
Director
June 24, 1998
s/ David S. Weil
David S. Weil
Director
June 24,1 998
/s/ Jerry Columbus
Jerry Columbus
Director
June 24, 1998
INDEX TO EXHIBITS
The following Exhibits are filed as part of this Registration
Statement.
Exhibit No. Description
4.1 Articles of Incorporation (*)
4.2 By-laws (*)
4.3 Indenture dated as of September 15, 1986 between the Company and
Manufacturers Hanover Trust Company ("Manufacturers") (*)
4.4 Form of the Company's 8% Convertible Subordinated Debenture (*)
4.5 Instrument of resignation, appointment and acceptance dated
August 9, 1993 among the Company, Manufacturers and Liberty Bank and Trust
Company of Oklahoma City (*)
4.6 Indenture dated as of April 1, 1987 between the Company and IBJ
Schroder Bank and Trust Company (*)
4.7 Form of the Company's 7% Convertible Senior Subordinated Debenture
(*)
5.1 Opinion of Morse Zelnick, Rose & Lander LLP regarding legality of
securities
23.1 Consent of Ernest & Young
23.2 Consent of Morse Zelnick, Rose & Lander LLP (included in Exhibit 5.1)
24 Power of attorney (included on Signatures Pages)
(*) Filed as Exhibit to Form 10-K for the fiscal year ended July 31, 1994 and
incorporated herein by reference.
EXHIBIT 5.1
June 24, 1998
Chock Full O'Nuts Corporation
370 Lexington Avenue
New York, New York 10017
Re: Stock Options
Gentlemen:
We have acted as counsel to Chock Full O'Nuts Corporation., a New
York corporation (the "Company") in connection with the preparation
of a registration statement on Form S-8 (the "Registration Statement")
to be filed with the Securities Exchange Commission under the
Securities Act of 1933, as amended to register the offering by the
Company of 479,000 Common Shares par value $.25 per share (the "Common
Shares") issuable upon exercise of options granted and to be granted
under the Company's Incentive Compensation Plan, as amended (the
"Plan").
In this regard, we have reviewed the Articles of Incorporation of the
Company, as amended, resolutions adopted by the Company's Board of
Directors, the Plan, the form of Options granted thereunder and such
other records, documents, statutes and decisions as we have deemed
relevant in rendering this opinion.
Based upon the foregoing, we are of the opinion that the Common Shares
issuable upon the exercise the options granted and to be granted
pursuant to the Plan have been duly and validly authorized for issuance
and when issued and delivered as contemplated by the Registration
Statement will be legally issued, fully paid and non-assessable.
We consent to the filing of a copy of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Morse, Zelnick,
Rose & Lander, LLP
MORSE, ZELNICK, ROSE & LANDER, LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Form S-8 of our report
dated September 30, 1997 with respect to the consolidated financial
statements and schedule of Chock Full O'Nuts Corporation and subsidiaries
included in its Form 10-K for the year ended July 31, 1997 filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
New York, New York
June 24, 1998
