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As filed with the Securities and Exchange Commission on November 10, 1994
Registration No. 33- _______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
The Securities Act of 1933
DREYER'S GRAND ICE CREAM, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware No. 94-2967523
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
5929 College Avenue
Oakland, CA 94618
(Address of Principal Executive Offices - Zip Code)
Dreyer's Grand Ice Cream, Inc. Stock Option Plan (1993)
(Full Title of the Plan)
Edmund R. Manwell
Manwell & Milton
101 California Street, Suite 3750
San Francisco, CA 94111
(Name and Address of Agent for Service)
(415) 362-2375
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) Per Share(2) Price(2) Fee(2)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 38,800 $29.375 $ 1,139,750 $ 392.99
$1.00 par value 297,000 23.875 7,090,875 2,444.93
31,000 21.75 674,250 232.48
10,000 23.50 235,000 81.03
5,000 25.3125 126,562.50 43.64
818,200 25.375 20,761,825 7,158.68
Rights to Purchase Series A
Participating Preferred Stock
1,200,000 (3) (3) (3)
Total $30,028,262 $10,353.75
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</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
option plan in the event of a stock dividend, split-up, merger, consolidation,
recapitalization, combination or reclassification of shares or other similar
event.
(2) Estimated pursuant to Rule 457(h) of the Securities Act of 1933 solely for
the purpose of calculating the registration fee, and computed based upon the
price at which options may be exercised with respect to 381,800 shares
presently subject to options and with respect to the remaining 818,200 shares
based upon the average of the high and low prices reported on the National
Market List of the National Association of Securities Dealers for the Common
Stock as of November 7, 1994.
(3) The Company's Rights to Purchase Series A Participating Preferred Stock
initially are carried and traded with the shares of Common Stock of the Company
being registered hereunder. Value attributable to such Rights, if any, is
reflected in the market price of the Common Stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
Dreyer's Grand Ice Cream, Inc. (the "Company" or the "Registrant")
hereby incorporates by reference the following documents filed with the
Securities and Exchange Commission (the "Commission"):
a. The Company's Annual Report on Form 10-K filed on March 24,
1994 for the fiscal year ended December 25, 1993;
b. The Company's Quarterly Report on Form 10-Q filed on May 10,
1994 for the quarter ended March 26, 1994;
c. The Company's Current Report on Form 8-K filed on May 6, 1994
(Commission File No. 0-14190);
d. The Company's Quarterly Report on Form 10-Q filed on August 9,
1994 for the quarter ended June 25, 1994;
e. The Company's Quarterly Report on Form 10-Q filed on November
8, 1994 for the quarter ended September 24, 1994;
f. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A for such Common Stock (effective
March 29, 1982) filed pursuant to Section 12(g) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), including any subsequent amendment or
any report or other filing filed with the Commission updating such description;
and
g. The description of the Company's rights to purchase Series A
Participating Preferred Stock set forth in Form 8-K, dated March 20, 1991, File
No. 0-10259, as amended by the First Amendment to Amended and Restated Rights
Agreement dated as of June 14, 1994 as set forth in Exhibit 4.1 to the
Company's Quarterly Report on Form 10-Q filed on August 9, 1994, for the
quarter ended June 25, 1994, including any subsequent amendment or any report
or other filing filed with the Commission updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
ITEM 4. Description of Securities.
Not Applicable.
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ITEM 5. Interests of Named Experts and Counsel.
The validity of the issuance of the Common Stock being registered
hereunder will be passed upon for the Company by Manwell & Milton, San
Francisco, California. Edmund R. Manwell, who serves both as Secretary of the
Company and as a member of the Board of Directors of the Company, is a partner
in the law firm of Manwell & Milton which acts as general counsel to the
Company. Mr. Manwell owns 24,000 shares of the Common Stock of the Company, and
has been granted options pursuant to the Company's Stock Option Plan (1993) to
purchase 5,000 shares of the Company's Common Stock at an exercise price of
$21.75 per share. Denise B. Milton, who is also a partner in the law firm of
Manwell & Milton, owns 5,325 shares of the Common Stock of the Company.
ITEM 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware permits
indemnification of directors, officers and employees of corporations under
certain conditions and subject to certain limitations. Section 6.10 of the
Bylaws of the Company requires indemnification of directors, officers and
employees within the limitations permitted by Section 145. The Company's
officers and directors are indemnified against certain liabilities under an
insurance policy maintained by the Company. Additionally, the Company has
entered into Indemnification Agreements with each of its directors and
executive officers which provide for the payment of amounts an indemnitee is
legally obligated to pay because of claims which may be based on any act or
omission, or neglect or breach of duty, including any error, misstatement or
misleading statement made, suffered or permitted by such executive officer or
director. The obligation of the Company to indemnify directors and officers
under the Indemnification Agreements is broader than that otherwise afforded by
Delaware Law.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
provides that a certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
Article Thirteenth of the Certificate of Incorporation of the Company
provides that directors and officers of the Company shall be indemnified to the
fullest extent permitted by the Delaware General Corporation Law. Article
Thirteenth of the Certificate of Incorporation of the Company provides that
directors of the Company shall not be personally liable for monetary damages to
the Company for breaches of their fiduciary duty as directors, except to the
extent that the elimination or limitation of liability is not permitted by the
Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Securities and Exchange Commission has expressed its opinion
that such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
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ITEM 8. Exhibits.
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Exhibit
Number Description
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<S> <C>
4.1 Dreyer's Grand Ice Cream, Inc. Stock Option Plan (1993). Incorporated by reference to Exhibit 10.9 to the
Company's Annual Report on Form 10-K for the fiscal year ended December 25, 1993.
4.2 Certificate of Incorporation of the Company, as amended, including the Certificate of Designation of
Series A Convertible Preferred Stock setting forth the Powers, Preferences, Rights, Qualifications,
Limitations and Restrictions of such series of Preferred Stock and the Certificate of Designation of
Series B Convertible Preferred Stock, as amended, setting forth the Powers, Preferences, Rights,
Qualifications, Limitations and Restrictions of such series of Preferred Stock. Incorporated by
reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 25,
1994.
4.3 By-laws of the Company, as amended. Incorporated by reference to Exhibit 3.2 to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 25, 1994.
4.4 Amended and Restated Rights Agreement between the Company and Bank of America, National Trust & Savings
Association dated March 4, 1991. Incorporated by reference to the designated Exhibit to the Company's
Current Report on Form 8-K filed under Commission File No. 0-10259 on March 20, 1991.
4.5 First Amendment to Amended and Restated Rights Agreement, dated as of June 14, 1994 between the Company
and First Interstate Bank of California (as successor Rights Agent to Bank of America NT & SA).
Incorporated by reference to Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for the quarter
ended June 25, 1994.
5 Opinion of Manwell & Milton as to the legality of the securities being registered.
23.1 Consent of Price Waterhouse.
23.2 Consent of Manwell & Milton (included in Exhibit 5).
24 Power of Attorney (included on page 5).
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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;
(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, represents a
fundamental change in the information set forth in this
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.
3
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provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) shall 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 this
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 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 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 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 the City of Oakland, State of California on November 10,
1994.
DREYER'S GRAND ICE CREAM, INC.
By: /s/ Paul R. Woodland
-------------------------------------------
(Paul R. Woodland, Vice President - Finance
and Administration)
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints T. Gary Rogers, William F. Cronk, III
and Edmund R. Manwell, jointly and severally his attorneys-in-fact, each with
the power of substitution, for him in any and all capacities, to sign any
amendments to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
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.
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<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ T. Gary Rogers Chairman of the Board and November 10, 1994
- --------------------------------- Chief Executive Officer
(T. Gary Rogers) and Director (Principal
Executive Officer)
/s/ William F. Cronk, III President and Director November 10, 1994
- ---------------------------------
(William F. Cronk, III)
/s/ Edmund R. Manwell Secretary and Director November 10, 1994
- ---------------------------------
(Edmund R. Manwell)
/s/ Paul R. Woodland Vice President - Finance November 10, 1994
- --------------------------------- and Administration,
(Paul R. Woodland) Chief Financial Officer
and Assistant Secretary
(Principal Financial Officer)
/s/ Jeffrey P. Porter Corporate Controller November 10, 1994
- --------------------------------- (Principal Accounting Officer)
(Jeffrey P. Porter)
/s/ Merril M. Halpern Director November 10, 1994
- ---------------------------------
(Merril M. Halpern)
/s/ Jerome L. Katz Director November 10, 1994
- ---------------------------------
(Jerome L. Katz)
</TABLE>
5
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<TABLE>
<S> <C> <C>
/s/ John W. Larson Director November 10, 1994
- ---------------------------------
(John W. Larson)
/s/ Jack O. Peiffer Director November 10, 1994
- ---------------------------------
(Jack O. Peiffer)
/s/ Anthony J. Martino Director November 10, 1994
- ---------------------------------
(Anthony J. Martino)
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
4.1 Dreyer's Grand Ice Cream, Inc. Stock Option Plan (1993). Incorporated by
reference to Exhibit 10.9 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 25, 1993.
4.2 Certificate of Incorporation of the Company, as amended, including the
Certificate of Designation of Series A Convertible Preferred Stock setting forth
the Powers, Preferences, Rights, Qualifications, Limitations and Restrictions of
such series of Preferred Stock and the Certificate of Designation of Series B
Convertible Preferred Stock, as amended, setting forth the Powers, Preferences,
Rights, Qualifications, Limitations and Restrictions of such series of Preferred
Stock. Incorporated by reference to Exhibit 3.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 25, 1994.
4.3 By-laws of the Company, as amended. Incorporated by reference to Exhibit 3.2 to
the Company's Quarterly Report on Form 10-Q for the quarter ended June 25, 1994.
4.4 Amended and Restated Rights Agreement between the Company and Bank of America,
National Trust & Savings Association dated March 4, 1991. Incorporated by
reference to the designated Exhibit to the Company's Current Report on Form 8-K
filed under Commission File No. 0-10259 on March 20, 1991.
4.5 First Amendment to Amended and Restated Rights Agreement, dated as of June 14,
1994 between the Company and First Interstate Bank of California (as successor
Rights Agent to Bank of America NT & SA). Incorporated by reference to Exhibit
4.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 25,
1994.
5 Opinion of Manwell & Milton as to the legality of the securities being
registered.
23.1 Consent of Price Waterhouse.
23.2 Consent of Manwell & Milton (included in Exhibit 5).
24 Power of Attorney (included on page 5).
</TABLE>
<PAGE> 1
EXHIBIT 5
MANWELL & MILTON
ATTORNEYS AT LAW
101 CALIFORNIA STREET
37TH FLOOR
SAN FRANCISCO, CA 94111
TELEPHONE (415) 362-2375
TELECOPY (415 362-1010
November 10, 1994
Dreyer's Grand Ice Cream, Inc.
5929 College Avenue
Oakland, CA 94618
Gentlemen:
This opinion is being furnished to you in connection with the
preparation and filing with the Securities and Exchange Commission (the
"Commission") of the Registration Statement on Form S-8 (the "Registration
Statement") relating to 1,200,000 shares (the "Shares") of the Company's Common
Stock, par value $1.00 per share (the "Common Stock") issuable pursuant to the
Company's Stock Option Plan (1993) (the "Plan").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Act").
We have examined and are familiar with originals or copies, certified
or otherwise identified to our satisfaction of (i) the form of the Registration
Statement to be filed with the Commission on the date hereof; (ii) the Plan;
(iii) the Certificate of Incorporation of the Company, as currently in effect;
(iv) the Bylaws of the Company, as currently in effect; (v) the resolutions of
the Board of Directors of the Company relating to, among other things, the
Plan; (vi) the resolutions of the stockholders relating to the Plan; (vii) the
forms of a specimen certificate representing the Shares; and (viii) such other
documents as we have deemed necessary or appropriate as a basis for the
opinions set forth below. We have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such latter documents.
Based upon and subject to the foregoing, it is our opinion that the
Shares, when issued and paid for in accordance with the terms of the Plan, will
be validly issued, fully paid and nonassessable.
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EXHIBIT 5
Dreyer's Grand Ice Cream, Inc.
November 10, 1994
Page 2
We hereby consent to the use of this opinion in connection
with the Registration Statement and to the reference to this firm
under the caption "Item 5. Interests of Named Experts and Counsel"
therein.
Very truly yours,
MANWELL & MILTON
By /s/ Denise B. Milton
--------------------
Denise B. Milton
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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 February 8, 1994, which
appears on page 18 of the 1993 Annual Report to Stockholders of Dreyer's Grand
Ice Cream, Inc., which is incorporated by reference in Dreyer's Grand Ice
Cream, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 25,
1993. We also consent to the incorporation by reference of our report on the
Financial Statement Schedules, which appears on page 18 of such Annual Report
on Form 10-K.
/s/ Price Waterhouse LLP
- ------------------------
Price Waterhouse LLP
San Francisco, California
November 10, 1994
