<PAGE> 1
As filed with the Securities and Exchange Commission on December 23, 1998
File No.333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
WALL STREET DELI, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 63-0514240
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
One Independence Plaza, Suite 100
Birmingham, Alabama 35209
(Address of principal executive offices)
WALL STREET DELI, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
Jeffrey V. Kaufman, President
One Independence Plaza, Suite 100
Birmingham, Alabama 35209
(205)870-0020
(Name, address and telephone number, including area code, of agent for service)
Copies to
Carolyn L. Duncan, Esq.
RITCHIE & REDIKER, L.L.C.
312 North 23rd Street
Birmingham, Alabama 35203
(205) 251-1288
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
- ---------------------------------------------------------------------------------------------------------------------
Proposed
Title of Each Class of Amount Proposed Maximum
Securities to be to be Maximum Offering Aggregate Amount of Regis-
Registered registered Price Per Share (1) Offering Price (1) tration Fee (1)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.05 per share 75,000 $ 3.28 $ 246,000 $ 68.39
- ---------------------------------------------------------------------------------------------------------------------
=====================================================================================================================
</TABLE>
(1) Determined in accordance with Rule 457(h) under the Securities Act of 1933,
based on $ 3.28, the average of the high and low sale prices quoted on the
NASDAQ National Market System on December 17, 1998.
================================================================================
Page 1 of 13
Exhibit Index Appears on Page 4
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
STATEMENT REGARDING INCORPORATION OF INFORMATION BY
REFERENCE FROM EFFECTIVE REGISTRATION STATEMENT
In accordance with Instruction E to Form S-8, the contents of the Registration
Statement on Form S-8 filed with the Securities and Exchange Commission under
the Securities Act of 1933 (Registration Number 33-34508, as filed on May 2,
1990), by Wall Street Deli, Inc. (the "Registrant"), relating to the
registration of up to 67,500 shares (as adjusted for a subsequent stock split in
the form of a stock dividend) of Common Stock, $.05 par value, of the
Registrant, authorized for issuance under the Registrant's Employee Stock
Purchase Plan, are hereby incorporated by reference in their entirety in this
Registration Statement. This Registration Statement provides for the
registration of up to an additional 75,000 shares of Common Stock of the
Registrant authorized for issuance under the Registrant's Employee Stock
Purchase Plan and approved on November 5, 1993 by the Registrant's shareholders.
ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement are as follows:
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<S> <C>
4(a)* Restated Certificate of Incorporation (incorporated by reference from Exhibit
3.1(b) to the Registrant's annual report on Form 10-K for the fiscal year
ended June 27, 1998)
4(b)* Bylaws (incorporated by reference from the Company's Proxy Statement for the
Special Shareholders Meeting held on September 25, 1986).
4(c)+ Wall Street Deli, Inc., Employee Stock Purchase Plan, as amended
5(a) & 23(a)+ Opinion and Consent of Counsel to Registrant
23(b)+ Consent of Independent Accountants
</TABLE>
- ------------------
* Incorporated herein by reference as indicated
+ Filed herewith
Page 2 of 13
<PAGE> 3
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 Birmingham, State of Alabama on December 22, 1998.
WALL STREET DELI, INC.
By /s/ Jeffrey V. Kaufman
--------------------------------------
Jeffrey V. Kaufman
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jeffrey V. Kaufman as attorney-in-fact,
having the power of substitution, for him in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 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
said attorney-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 dates indicated.
<TABLE>
<S> <C> <C>
/s/ Jeffrey V. Kaufman President, Chief Executive December 22, 1998
- -------------------------------- Officer and Director
JEFFREY V. KAUFMAN
/s/ Robert G. Barrow Vice Chairman, Chief Financial December 22, 1998
- ------------------------------- Officer and Director
ROBERT G. BARROW
/s/ Julie J. Christian Vice President and Controller December 22, 1998
- -------------------------------- (Principal Accounting Officer)
JULIE J. CHRISTIAN
/s/ Alan V. Kaufman Chairman of the Board December 22, 1998
- --------------------------------
ALAN V. KAUFMAN
/s/ William S. Atherton Director December 22, 1998
- --------------------------------
WILLIAM S. ATHERTON
/s/ Jake L. Netterville Director December 22, 1998
- --------------------------------
JAKE L. NETTERVILLE
</TABLE>
Page 3 of 13
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION PAGE
<S> <C> <C>
4(c) Wall Street Deli, Inc., Employee Stock Purchase Plan, as
amended 5
5(a) & 23(a) Opinion and Consent of Counsel to Registrant 10
23(b) Consent of Independent Accountants 12
</TABLE>
Page 4 of 13
<PAGE> 1
EXHIBIT 4(C)
Page 5 of 13
<PAGE> 2
WALL STREET DELI, INC.
EMPLOYEE STOCK PURCHASE PLAN
As amended
Wall Street Deli, Inc. desires to provide its employees a program by
which they can conveniently acquire shares of the Company's stock on favorable
terms. Accordingly, Wall Street Deli, Inc. adopts this employee stock purchase
plan effective May 1, 1990, as specified below.
1. PURPOSE.
The purpose of the Wall Street Deli, Inc. Employee Stock Purchase Plan
is to provide eligible employees of Wall Street Deli, Inc. with the opportunity
to acquire shares of common stock of the Company on a payroll deduction basis.
The Company believes that employee participation in the ownership of the Company
will be to the mutual benefit of both the employees and the Company. The Company
intends to have the Plan qualify as an "employee stock purchase plan" under the
provisions of Section 423 of the Internal Revenue Code of 1986, and the Plan
shall be administered and construed in a manner consistent with such provisions.
2. DEFINITIONS.
(a) "Board" means the Board of Directors of Wall Street Deli, Inc.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" means the Committee appointed to administer the
Plan as provided in Section 3.
(d) "Common Stock" or "Stock" means Wall Street Deli, Inc. common
stock, par value $.05 per share.
(e) "Company" means Wall Street Deli, Inc., its subsidiaries and
their successors and assigns.
(f) "Plan" means the Wall Street Deli, Inc. Employee Stock
Purchase Plan, as set forth herein.
3. ADMINISTRATION OF THE PLAN.
The Plan shall be administered by a Committee composed of three members
to be selected from time to time by the Board. The Committee shall have full
authority to make and interpret such equitable rules and regulations regarding
administration of the plan as it may deem advisable, subject to the terms of the
Plan. Its determination as to the interpretation and operation of the Plan shall
be final and conclusive.
4. EMPLOYEES ELIGIBLE TO PARTICIPATE.
Any employee of the Company who is actively employed by the Company at
the Subscription Date is eligible to subscribe for the purchase of shares of
Stock under the Plan, except:
(a) employees who have been employed by the Company less than
three months;
(b) employees whose customary employment is 20 hours or less per
week; and
(c) employees whose customary employment is for not more than five
months in any calendar year.
5. OFFERING PERIODS.
The Company will make a series of offerings at six-month intervals
granting its eligible employees the
Page 6 of 13
<PAGE> 3
opportunity to subscribe to purchase shares of Stock. Each subsequent offering
period shall be for a period of fifteen days. The last business day of each
offering period shall be deemed the offering date for such period. In order to
purchase shares of Stock offered hereunder, an eligible employee must sign a
subscription agreement and any other related documents during the offering
period.
6. PURCHASE PRICE.
The purchase price per share of Stock at each offering will be 85% of
the net purchase price for shares of Common Stock as determined by the Company
based on its cost of acquiring Stock for purchase by employees hereunder. The
Company will acquire such shares as it will require to satisfy the subscriptions
of the employees within a period of time ending not later than two weeks after
the offering date for the subscription period. As soon as possible after it has
acquired such shares, it will notify the subscribing employees in writing of its
determination of the purchase price per share. Notwithstanding the foregoing, in
no event will the purchase price be less than 85% of the fair market value of
the Stock as of the offering date. The purchase price per share shall be subject
to adjustment in accordance with the provisions of Section 17.
7. STOCK.
The shares to be sold to eligible employees pursuant to their
subscriptions hereunder may, at the election of the Company, be either shares
which the Company purchases on the open market for this purpose or treasury
shares. The maximum number of shares which shall be made available for sale
under the Plan shall be 142,500 shares, subject to adjustment as provided in
Section 17. If the total number of shares subscribed for hereunder exceeds
142,500 as of any offering date, the Company shall make a pro rata allocation of
the shares remaining available in as nearly a uniform and equitable manner as
shall be practicable so that the aggregate number of shares subscribed for will
not exceed 142,500.
8. SUBSCRIPTION LIMITS.
The minimum number of shares for which an employee will be permitted to
subscribe at any one offering is 50. There is no limit on the maximum number of
shares except as provided in Section 18.
9. PAYROLL DEDUCTIONS.
Concurrently with his execution of a subscription agreement, a
subscribing employee shall authorize the Company to make payroll deductions to
pay for the shares of Stock he has subscribed for. Payment of the purchase price
of such shares shall be made in equal regular installments (not less often than
monthly) withheld from the subscribing employee's regular pay during the period
of 12 calendar months commencing with the month following that in which the
offering period expires. If an employee subscribes for additional shares of
Stock in successive offering periods, the amount of his payroll deductions shall
be increased accordingly. An employee may prepay the amount due by him in whole
or in part at any time.
10. ACCOUNT; DELIVERY OF SHARES.
The Company will maintain an account for each employee who purchases
shares hereunder showing the number of shares each employee has subscribed to
purchase and the number of shares allocated to each employee's account. At least
annually (or more often if the Committee deems it appropriate) the Company shall
furnish each subscribing employee a statement of his account. Shares of Stock
covered by a subscription agreement shall be deemed to have been sold to the
employee on the date on which the full purchase price of all shares covered by
such agreement has been withheld or paid. After receiving the full purchase
price of all such shares, the Company may continue to hold such shares in an
employee's account for his benefit and convenience, provided that if an employee
makes a written request for delivery of his shares, the Company shall promptly
deliver a stock certificate or certificates for such shares to him.
Page 7 of 13
<PAGE> 4
11. CANCELLATION OF PARTICIPATION IN THE PLAN.
Each subscribing employee shall have the right to cancel his
subscription agreement at any time prior to payment in full for the shares for
which he has subscribed by giving the Company written notice thereof. In that
event the Company will refund all money the employee has had withheld or has
paid in with respect to the cancelled subscription. Such cancellation will have
no effect on any shares of Stock purchased under a previous subscription
agreement which are held in his account. Should any installment be due and
unpaid for 15 days without satisfactory arrangement for the payment thereof
being made within such 15-day period, the subscription agreement shall thereby
be automatically terminated and the money previously paid shall be refunded to
the employee.
12. EMPLOYEES' RIGHTS AS SHAREHOLDERS.
No subscribing employee shall have any rights as a shareholder of the
Company until he has made full payment for the shares he has subscribed for. No
subscribing employee will be entitled to any cash dividends declared by the
Company unless the participant has made full payment for the shares he has
subscribed for prior to the ex-dividend date of such declared dividends.
Thereafter, he shall have full rights as a shareholder of the Company, but it
shall not be necessary for the Company to make actual delivery of a stock
certificate to him.
13. INTEREST.
No interest will be credited or paid by the Company on any money
withheld or paid in hereunder by the participating employees under any
circumstances.
14. RIGHTS NOT TRANSFERABLE.
No subscribing employee shall have the right to transfer or pledge his
rights under the Plan or any subscription agreement entered into pursuant to the
Plan other than by will or the laws of descent and distribution.
Such rights are exercisable during his lifetime only by him.
15. TERMINATION OF EMPLOYMENT.
Upon termination of employment for any reason whatsoever, including,
but not limited to, death or retirement, the subscribing employee, or his
personal representative in the event of his death, may elect within 60 days
after the happening of such event to pay the entire balance due and receive the
shares subscribed for. The failure to make such election within such period will
be treated as notice of cancellation and a refund will be paid to such employee
or his estate as provided in paragraph 11.
16. AMENDMENT OR DISCONTINUANCE OF THE PLAN.
The Board shall have the right to amend, modify, or terminate the Plan
at any time without notice, provided that no employee's rights under existing
subscription agreements are adversely affected thereby, and provided further
that no such amendment of the Plan shall, except as provided in Section 17:
(a) increase above 30,000 the total number of shares to be offered
without approval of the shareholders of the Company; or
(b) cause the Plan to fail to meet the requirements of an employee
stock purchase plan as defined in Section 423 of the Code.
17. ADJUSTMENT OF SUBSCRIPTIONS.
In the event of reorganization, recapitalization, stock split, stock
dividend, combination of shares, merger,
Page 8 of 13
<PAGE> 5
consolidation, offerings of rights, or any other change in the structure of the
Common Stock of the Company, the Board may make such adjustments, if any, as it
may deem appropriate in the number, kind, and the subscription price of shares
available for purchase under the Plan, and in the minimum number of shares which
an eligible employee is entitled to purchase.
18. SHARE OWNERSHIP.
Notwithstanding anything herein to the contrary:
(a) No employee shall be permitted to subscribe for any shares
under the Plan if such employee, immediately after such subscription, owns
shares (including all shares which may be purchased under outstanding
subscriptions under the Plan) possessing 5% or more of the total combined voting
power or value of all classes of shares of the Company. For the foregoing
purposes, the rules of Section 425(d) of the Code shall apply in determining
share ownership.
(b) No employee shall be allowed to subscribe for any shares under
the Plan which permits his rights to purchase shares under all stock purchase
plans of the Company to accrue at a rate which exceeds $25,000 of the fair
market value of such shares (determined at the time the subscription agreement
is entered into) for each calendar year in which such right to subscribe is
outstanding at any time.
19. APPROVAL OF SHAREHOLDERS.
The Plan shall be submitted for approval by the Shareholders of the
Company at their next annual meeting. Subscriptions hereunder shall be subject
to the condition that the Plan will be so approved. If the Plan is not so
approved within the time required by Section 423(b)(2) of the Code, the Plan
shall terminate, all subscriptions shall be cancelled, and all persons who shall
have subscribed for shares hereunder shall be entitled to the prompt refund in
cash of all sums withheld from or paid by them pursuant to the Plan and
subscriptions hereunder.
20. PRONOUNS; HEADINGS.
Wherever any words are used in the masculine gender, they shall be
construed as though they were also used in the feminine gender in all cases
where they would so apply. Headings used herein are for general information only
and do not constitute part of the Plan.
____________________
Page 9 of 13
<PAGE> 1
EXHIBIT 5(A) AND 23(A)
Page 10 of 13
<PAGE> 2
[Letterhead of Ritchie & Rediker, L.L.C.]
December 22, 1998
Wall Street Deli, Inc.
One Independence Plaza, suite 100
Birmingham, Alabama 35209
Re: Form S-8 Registration Statement -
Wall Street Deli, Inc. Employee Stock Purchase Plan
Gentlemen:
As counsel for Wall Street Deli, Inc., a Delaware corporation (the
"Company"), we have participated in the preparation of the referenced Form S-8
Registration Statement relating to the amendment to the Company's Employee Stock
Purchase Plan (the "Plan") and the proposed offer and sale pursuant thereto of
up to an additional 75,000 shares of the Company's common stock, $.05 par value
(hereinafter referred to as "Common Stock"). In connection with the preparation
of said Registration Statement, we have examined certificates of public
officials and originals or copies of such corporate records, documents and other
instruments relating to the authorization and issuance of such shares of Common
Stock pursuant to the Plan as we have deemed relevant under the circumstances.
On the basis of the foregoing, it is our opinion that:
1. The Company was duly organized and incorporated and is validly
existing under the laws of the State of Delaware, with an authorized
capitalization consisting of 20,000,000 shares of Common Stock, par value $.05
per share.
2. The proposed offer and sale pursuant to the Plan of up to
75,000 shares of Common Stock have been duly authorized by the Board of
Directors of the Company, and such shares, when issued in accordance with the
terms and conditions of the Plan, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to said
Registration Statement.
Yours very truly,
RITCHIE & REDIKER, L.L.C.
By: s/ Carolyn L. Duncan
-------------------------------------
Carolyn L. Duncan
Page 11 of 13
<PAGE> 1
EXHIBIT 23(B)
Page 12 of 13
<PAGE> 2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Wall Street Deli, Inc.
Birmingham, Alabama
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated August 7, 1998, relating to the consolidated
financial statements of Wall Street Deli, Inc. appearing in the Company's Annual
Report on Form 10-K for the fiscal year ended June 27, 1998.
BDO Seidman, LLP
Memphis, Tennessee
December 22, 1998
Page 13 of 13
